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State v. Pittman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 26, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND PITTMAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-03-00373.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges Sabatino and Alvarez.

Following a jury trial, defendant Raymond Pittman was convicted of all seven counts of Middlesex County Indictment Number 04-03-00373. He was charged with possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count three); possession of a controlled dangerous substance with intent to distribute within 500 feet of a public building, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1 (count four); distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(5) (count five); distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35- 7 (count six); and distribution of a controlled dangerous substance within 500 feet of a public building, N.J.S.A. 2C:35- 5(a) and N.J.S.A. 2C:35-7.1 (count seven). Rebecca C. Brunson was a named co-defendant on count one, possession of heroin.

All counts arise from a single drug transaction which occurred on January 20, 2004. The trial judge merged all of the convictions into count seven, possession with intent within 500 feet of a public building, and sentenced defendant to an eight- year term of imprisonment, subject to four years of parole ineligibility. Appropriate fees and penalties were imposed. Defendant appeals and we affirm the judgment of conviction, but remand for a re-sentencing in accord with State v. Natale (Natale II), 184 N.J. 458, 465-66 (2005).

According to the State's proofs at trial, New Brunswick Police Detective Mike Sutton was on narcotics surveillance in the middle of the afternoon when he witnessed defendant standing on a street corner. Two men approached defendant and removed money from their pockets. They all continued to walk out of Sutton's sight. Later, defendant returned to the street corner. Brunson approached him, and the two walked towards the surveillance site. From a distance of approximately fifty feet, Sutton saw Brunson give defendant money. Defendant, in turn, gave her a black plastic item. Sutton then radioed to other officers who immediately arrested Brunson and defendant. The corner was within 1,000 feet of a school and within 500 feet of the New Brunswick Fire Museum.

Sutton returned to the police station later that afternoon. As he walked past defendant in the booking room, defendant motioned Sutton over and asked if he could speak with him. Sutton told defendant they could talk after Sutton finished the arrest paperwork. Some twenty or thirty minutes later, he took defendant into an interview room. Defendant offered to "work with you guys." When Sutton said, "let's talk about today," defendant readily admitted making "a couple of sales" in order to earn money for school, although he refused to talk on tape. The following points are raised on appeal:

POINT I.

THE PROSECUTOR'S COMMENTS THROUGHOUT THE TRIAL DENIGRATING THE DEFENSE AND DEFENDANT AND SUGGESTING DEFENDANT WAS GUILTY OF OTHER CRIMES AND WRONGS IMPERMISSIBLY INFLUENCED THE JURY, REQUIRING REVERSAL. (RAISED BELOW)

A. PROSECUTOR'S INAPPROPRIATE COMMENTS.

B. DEFENSE COMMENTS

C. DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.

POINT II.

DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE FIREFIGHTING HISTORICAL COLLECTION WAS NOT A MUSEUM PURSUANT TO N.J.S.A. 2C:35-7.1; R. 3:18-1. (RAISED BELOW)

POINT III.

N.J.S.A. 2C:35.7-1 IS UNCONSTITUTIONALLY VAGUE AS IT PROVIDES NO DEFINITION OF THE TERM "MUSEUM." (NOT RAISED BELOW)

POINT IV.

DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AS THERE WERE INSUFFICIENT PROOFS THAT THE SCHOOL WAS USED FOR SCHOOL PURPOSES ON THE DATE OF THE ARREST. R. 3:18-1. (RAISED BELOW)

POINT V.

THE TRIAL COURT ERRED IN ADMITTING CO-DEFENDANT'S STATEMENT TO POLICE AND IN NOT LIMITING THE USE OF THE STATEMENT VIOLATING DEFENDANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM. N.J.R.E. 803(c)(25). (NOT RAISED BELOW)

POINT VI.

DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW)

POINT VII.

DEFENDANT WAS ENTITLED TO A CHARGE THAT THE JURY MAY DRAW AN ADVERSE INFERENCE FROM THE FACT THAT THE STATE DID NOT CALL CO-DEFENDANT TO THE STAND. (RAISED BELOW)

POINT VIII.

DEFENDANT'S CONVICTION ON TWO DUPLICATE COUNTS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

POINT IX.

THE COURT DID NOT RESPOND SUBSTANTIVELY TO QUESTIONS ASKED BY THE JURY. R. 2:10-2. (NOT RAISED BELOW)

POINT X.

DEFENDANT'S SENTENCE PENALTIES WERE EXCESSIVE AND INCONSISTENT WITH THE REQUIREMENTS OF STATE V. NATALE AND STATE V. THOMAS.

A. THE MATTER SHOULD BE REMANDED FOR RE-SENTENCING.

B. THE COURT ERRED IN THE ANALYSIS OF AGGRAVATING AND MITIGATING FACTORS.

During the trial, the prosecutor made several comments now urged as a basis for reversal. The following is taken from the transcript of the prosecutor's opening statements:

[Prosecutor]: Because a lot of times cases boil down to is it believable. Does it make sense. Is it corroborated. Well, look at the people. Look at their faces. See how they answer questions. Ask yourself if I was on that witness stand how would I do. Are there going to be some inconsistencies? You bet you. If I ask you guys, if I put you guys all in a room, all in a room and showed you something - -

[Defense Counsel]: Judge, I am going to object at this point in time. I am going to object to putting the jurors in place of and using them as an example. It is inappropriate, Judge.

[The court sustained.]

[Prosecutor]: Inconsistencies are part of every case, ladies and gentlemen. Inconsistencies are part of life. Inconsistencies are not going to go away. You can't watch something a year from now and see exactly the same way. That is a fact of life and as you look at these witnesses, as you are three feet away don't forget that. Don't hold them to some ridiculous standard, some obscene standard. And talking about standards, don't hold me to that obscene standard. You're going to hold me to the standard that the Judge is - -

[Defense Counsel]: I object again. It is not Mr. Sweeney, Judge, it is the State, and I object to him putting himself in this position on a personal - -

[Prosecutor]: Your Honor, the last time I checked I represented the State.

[Court]: All right, sidebar, counsel. (Whereupon the following is heard at sidebar:)

[Defense Counsel]: I object.

[Prosecutor]: Your Honor, saying that don't hold me to a higher standard I don't think there is anything inappropriate about that. I represent the interests - -

[Defense Counsel]: Keep your voice down.

[Prosecutor]: If you want me to say don't hold the State to a higher standard?

[Defense Counsel]: That is what I want you to say. That is what you should say.

[Court]: I am going to sustain the objection. You need to depersonalize the comments.

[Defense Counsel]: Thank you.

[Court]: Thank you.

(End of sidebar.)

[Court]: You may continue.

[Prosecutor]: Thank you. Do not hold the State of New Jersey to some higher standard that the Court tells you. Do not hold the State of New Jersey to a standard that is not given to you by the Court. Do not hold the State of New Jersey to what I call the Hollywood standard. This is not TV. This is not CSI New York. This is not CSI New Brunswick, okay. What you see on TV is not real. This is what happens. Not what you see on Law & Order. Not what you see on Court TV. Not what you see on the Grammys that come from a Hollywood producer with writers and producers that, to sell commercials. It is not real. Do not hold the State of New Jersey to the Hollywood standard. Hold it to the standard of what reality is. You're going to hear reality in this courtroom. That is how it's done. It is what happens on the streets.

[Defense Counsel]: Judge, once again, I'm sorry, this is an opening statement, it is not argument, Judge.

[Court]: Overruled.

[Prosecutor]: Do not hold the State of New Jersey to that Hollywood standard. Hold it to the standard of reality and what the Court gives you. Keep that in mind when you are hearing the testimony.

The following was stated during the State's closing:

You know one thing that is, one thing that struck me he put on a very nice show, it was kind of amusing, but it boiled down to a couple of things. Let's make fun of the indictment. Okay, let's laugh at the indictment. It has got seven counts. He got two little bags and we got seven counts. Let's mock the system. Let's make fun of the indictment. Let's get all you guys angry that there are seven counts of an indictment. Gee, seven counts. Two little baggies and seven counts. Let make fun of this piece of paper in the indictment. The police don't hand up an indictment. I don't hand up an indictment. The Grand Jury of the County of Middlesex hands up an indictment, okay. That is how an indictment comes before this Court. Don't let Mr. Fetky try to convince you that the police write up an indictment, and pile on, I think he used the word pile on and let's get him. Let's go with seven counts, not five, six, seven. He read all the counts to you. He is trying to get you angry that there are seven counts for two little bags. The Grand Jury of the County of Middlesex decided that seven counts were appropriate to send to this court. Nobody else, okay. This isn't about making fun of a piece of paper in the indictment, making fun of the charge and then getting a laugh and say, boy, there is overkill. This is ridiculous. The Grand Jury decided it was appropriate to put before this court, okay. That's it. Don't let him convince [you that] this is overkill. It's not. It is one transaction. The Grand Jury decided that seven counts might be appropriate to bring to this [c]court. Okay.

Another thing that he wanted to get you to do is, gees, let's make fun of the police officers. Let's mock them a little bit. They got chips on their shoulders. These guys, they make one little arrest. They're there all day sitting there. Let's mock them a little bit, you know. If that is your defense, let's make fun of the indictment. Let's make fun of the police officers. Let me mock them for having chips on their shoulders. Like I told you at the beginning inconsistencies are kind of normal, okay.

Now some of the police officers remembered hat on, some remembered hat off. No hat, yes hat. Why is that? Because remember the defendant explained to you pretty well, he said even when he got arrested one of the officers took his hat off for a while and was like, threw his hat to see if he had anything in his hat, maybe one of the police officers saw him at that time and said I didn't see a hat on at the time, I don't think so. Might have but I don't think I remember a hat. And back at the station one of the things they did they took his hat off of him and stuck it in his coat pocket so the police officer remembering him back at the station you know what, I remember him sitting there. I don't remember seeing a hat, okay. They see him in the booking room getting fingerprinted. Maybe sitting there handcuffed to a bench or something. You know, they see him for ten minutes. I don't remember a hat. Must have passed him ten times back at the street, ladies and gentlemen. This hat issue is a nonissue. It is just not there. I mean, when you have no defense you got, Mr. Fetky has got to get up here and say something.

[Defense Counsel]: Objection, Judge. I object to that. I don't have to [say] anything.

[Court]: Sustained.

[Prosecutor]: The defense here is grasping. If all he has got - -

[Defense Counsel]: Judge, may I be heard at sidebar?

[Court]: Sidebar.

[Defense Counsel]: I will save it until after the summation. I'll save it.

[Prosecutor]: If the hat defense is all there is there is no defense, ladies and gentlemen.

The prosecutor continued:

The police reports get made public, so how much sense would it make for the police to say I was in John Doe's house watching out of his upstairs bedroom windows watching drug trafficking go on? You think the drug dealer would be thrilled with John Doe living on Remsen Avenue? No way, okay. Because that is just not a good job on their part. They have to say the area of. They have to try to give a little misinformation in the report so the drug dealers do not know where they are. Okay, that makes sense. It is to protect people that actually help the police officer, help the department out and say, yeah, you can come up, there is drug dealing going on right in front of my house and I don't like it. You can come up and watch from my attic window if you want but, please - -

[Defense Counsel]: Judge, I am going to object to that. There is no testimony that - -

[Court]: Sidebar, counsels.

(Whereupon the following is heard at sidebar:)

[Court]: Keep your voices down. Continue your objection.

[Defense Counsel]: Judge, I object. Number one, I am requesting a mistrial for what he said initially. He knows I have no burden. He knows I don't have to do anything. And for him to mock my defense I suggest is prosecutorial misconduct. I am requesting a mistrial or at least a curative instruction.

Second, he's telling these people that there is drug dealing going on. That the people are being threatened. That the people whose houses were being used have seen drug dealing going on and they reported it. None of that is before this jury and I object to this.

[Prosecutor]: The comments about not revealing the location of the surveillance and the reasons why it is not done was explained in the record by Detective Gould to protect citizens who cooperate with the police and let them use their residence. I think it is in the record and I can comment on it.

[Court]: As to that specific issue there was testimony. I am satisfied that the prosecutor's comments did not go far afield of what the testimony reflected and was fair comment. However, I am going to caution with respect to comments demeaning or giving a personal opinion about the lack of a defense and in some way implicating or inferring that there is, you know, a quality assessment that the prosecutor on behalf of the State is making as to the defense is inappropriate. I am going to tell the jury to disregard the statements concerning the comments that were made about the quality or the lack of a defense.

[Defense Counsel]: Thank you.

(End of sidebar.)

[Court]: Ladies and gentlemen, before we proceed I just want to instruct you that concerning the prosecutor'[s] previous comments about no defense and that I want it to be clear to you that the defense bears no burden in a criminal trial. It is the State that bears the burden of proof beyond a reasonable doubt. And comments by counsel, both counsel are simply not controlling. These are arguments, these are their beliefs and this is their determination as to what they believe is important. You will eventually receive from the Court full instructions about how to consider comments and arguments of counsel and again I make that instruction to you at this time. You are to just disregard that particular comment, that comment about no defense or comments about the quality of a defense.

You may continue . . .

The prosecutor also said the following:

Mr. Pittman told you himself that's, gees, I was read these rights. Yeah, I understood them. That is my signature. The fact that his rights weren't on tape again it is a nonissue. It is trying to get you to look somewhere where you shouldn't be looking. Don't look at the tape issue. It is just not there.

The claims of prejudice allegedly created by other comments or statements made by the prosecutor, other than those set forth above, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In assessing prosecutorial misconduct, we must determine if "'the conduct was so egregious that it deprives the defendant of a fair trial.'" State v. Loftin, 146 N.J. 295, 386 (1996) (Loftin I) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)). In making the determination, we consider whether a timely objection was made, whether a remark was withdrawn promptly, whether it was stricken, and whether the trial court instructed the jury to disregard the objectionable comments. Ramseur, supra, 106 N.J. at 322-23. But a prosecutor is "afforded considerable leeway" in arguments presented to a jury. State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988)).

Although their primary duty is to see that justice is done, prosecutors "are expected to make vigorous and forceful closing" statements. Ibid. (citing Harris, supra, 141 N.J. at 559). Prosecutors are prohibited from "cast[ing] unjustified aspersions on the defense or defense counsel;" they are "not permitted to characterize defense counsel's arguments as 'lawyer talk.'" State v. Smith, 167 N.J. 158, 177 (2001) (quoting Frost, supra, 158 N.J. at 87). Nor are they permitted to tell a jury that it is the defense's role to confuse. Id. at 178 (citing State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991)). Prosecutors may not characterize a defense attorney or a defense theory as "'outrageous, remarkable, absolutely preposterous and absolutely outrageous.'" Ibid. (quoting State v. Acker, 265 N.J. Super. 351, 356 (App. Div.), certif. denied, 134 N.J. 485 (1993)). But a prosecutor can respond to points made by defense counsel and draw reasonable inferences from the facts of the case. Ibid. (citing State v. Johnson, 31 N.J. 489, 510 (1960)).

If no objection is made to allegedly improper remarks, they will ordinarily not be deemed to be prejudicial. Frost, supra, 158 N.J. at 83-84 (citing Ramseur, supra, 106 N.J. at 323). Failure to object indicates the statements did not seem prejudicial at the moment, and within the context in which they were made. Id. at 84. Additionally, failure to object does not give a trial court the opportunity to take corrective action. Ibid. (citing State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997)). Essentially, although a prosecutor is not expected to make arguments to the jury "with the daintiness of a participant in a minuet," their statements must not deprive defendant of a fair trial. State v. Lockett, 249 N.J. Super. 428, 435-36 (App. Div.), (citing State v. Bogen, 13 N.J. 137, 141, cert. denied sub nom., Lieberman v. New Jersey, 346 U.S. 825, 74 S.Ct. 44, 98 L.Ed. 350 (1953)), certif. denied, 127 N.J. 553 (1991). All of the prosecutor's comments, in summary, must be "reasonably related" to the evidence. Frost, supra, 158 N.J. at 82 (citing Harris, supra, 141 N.J. at 525; Williams, supra, 113 N.J. at 447). In his initial opening remarks about not being held to an "obscene standard," a "ridiculous standard," or a "Hollywood standard," the prosecutor was attempting to explain that witnesses see and hear things differently, and that discrepancies in their testimony naturally develop during the trial. He was trying to dispel any illusion jurors may have had that a trial in the real world is like a trial in the world of fiction. The comments in the opening statement do not rise to the level of misconduct, albeit, the ideas could have been better phrased. The prosecutor to some extent echoed the model opening charge given by the judge which included a brief discussion of inconsistencies between witnesses. See Model Jury Charge (Criminal), "Instructions After Jury Is Sworn" (2004).

The prosecutor's closing remarks were not misconduct either. For example, he told the jury that the defense theory "mocked the system," but this was arguably a fair characterization of points made during defense counsel's closing. The prosecutor was attempting to review the evidence in the manner most favorable to the State and respond to points made by his adversary.

In a similar vein, it was improvident for the prosecutor to state that the secrecy surrounding the surveillance site was necessitated by the potential risks to citizens who allow their homes to be used for that purpose. But it was not couched in language which inflamed jurors' passions. He was reiterating testimony elicited from a detective and commenting upon a relatively self-evident proposition. The remarks were reasonably related to the evidence, and to the comments made by the defense in its closing. These too did not prejudice the outcome.

As the State acknowledged, the most problematic statement was the prosecutor's comment that, "when you have no defense you got, [defense counsel] has got to get up here and say something . . . . The defense here is grasping." Obviously, the remark was improper. Defendant has no burden. The characterization came dangerously close to disparaging the defense closing as meaningless "lawyer talk." But the comment was brief, and when placed in the context of a detailed and lengthy review of the evidence also appears harmless. After the statement, the court immediately gave a curative instruction reminding jurors that a defendant bears no burden of proof and that statements made by counsel are merely argument. In the general instructions the trial judge gave at the start of trial she explained that the attorneys' closing statements were nothing more than "final arguments based upon their respective recollections of the evidence." Model Jury Charge (Criminal), "Instructions After Jury Is Sworn" (2004). Additionally, in the jury charge at the end of the case she reminded the jury that "[a]rguments, statements, remarks, openings, closing arguments and summations of counsel are not evidence and must not be treated as evidence." See Model Jury Charge (Criminal), "Criminal Final Charge" (2002). Jurors are presumed "to be rational and intelligent." State v. Daniels, 182 N.J. 80, 99 (2004) (citing Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-25, 35 L.Ed. 371, 376 (1891)). It is also presumed that jurors will follow instructions. State v. Nelson, 173 N.J. 417, 478 (2002) (citing State v. Manley, 54 N.J. 259, 270 (1969)). The court's instruction adequately addressed the prosecutor's poorly chosen words.

Similarly, moments after the instruction, the prosecutor should not have stated to the jury that the defendant was attempting to "get you to look somewhere where you shouldn't be looking." Those words were said, however, in the context of discussing defense counsel's argument to the jury that the reading of defendant's Miranda rights were not tape recorded. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). In the overall context, the characterization of the failure to tape the reading of Miranda rights as a "non-issue" is not misconduct. It was a "non-issue." Defendant testified that he was advised of his Miranda rights and signed a card attesting to that fact. There is no requirement that this advisement be taped. See id. at 471, 86 S.Ct. at 1626, 16 L. Ed. 2d at 722 (explaining that the requirement is that the court have "ascertainable assurance that the accused was aware of his right[s]." Because the remark was made without objection, it must be looked at under the plain error standard of review. In that light, it was simply not capable of producing an unjust result. State v. Macon, 57 N.J. 325, 335 (1971).

Defendant also contends that the prosecutor's missteps cumulatively deprived him of a fair trial. None were actual prosecutorial misconduct. In weighing their overall cumulative effect given defendant's confession and Sutton's testimony, it cannot be fairly said they deprived defendant of a fair trial. Furthermore, the judge's charges did "ameliorate potential prejudice caused by remarks that are only slightly improper." Frost, supra, 158 N.J. at 87 (citing State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S. Ct. 535, 102 L.Ed. 2d 566 (1988)).

Defendant also maintains that the New Brunswick Fire Museum is not a "museum" as referred to in N.J.S.A. 2C:35-7.1, and that therefore, the convictions for counts four and seven must be vacated. It is also contended that the statute is unconstitutionally vague. The New Brunswick Fire Museum has been recently found to come within the purview of the statutory term "museum" in State v. Chambers, 396 N.J. Super. 259 (App. Div. 2007). Additionally, the statute is not unconstitutionally vague. The term is one readily capable of definition.

Statutory language should be given its ordinary meaning and significance. Am. Fire & Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 79 (2006) (citing DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)). It should be read in context so as to make it meaningful within the statutory scheme. Ibid. "Public building" is defined as "any publicly owned or leased library or museum." N.J.S.A. 2C:35-7.1(f). "Museum" is a term whose meaning is readily ascertainable. As used in the statute, it is not unconstitutionally vague.

The State moved into evidence a school zone map as the principal proof that the corner at which the distribution occurred was within 1000 feet of a school zone. Sutton testified that to the best of his knowledge, the building housed a school. When asked on cross-examination if the school had actually been converted into a nursery used for day care purposes, he replied, "I'm not, I'm not aware of that." The defense contends that this response means the building is not a school. It is clear from the question and answer that Sutton was reiterating that the building continued to house a school and that he knew nothing to the contrary. The State proved the school zone element of the statute.

In her taped statement to the police, Brunson said the person who sold her the drugs was wearing a black coat and grey hat. Sutton described defendant as wearing a black jacket, grey sweatpants and brown work boots. Because of this discrepancy in clothing description, defense counsel sought to admit, over the State's objection, Brunson's statement pursuant to N.J.R.E. 803(c)(25) to attempt to raise an identification defense. The court admitted the statement in reliance on the rationale of State v. Bell, 249 N.J. Super. 506, 511 (Law Div. 1991) that although portions of the statement "might be neutral or self- serving" if taken out of context, where the entire statement within context might plausibly inculpate the speaker, the entire statement should be admitted. As the State contends, a co- defendant's statements have long been found to be admissible where exculpatory. Ibid. Now the defense objects that admission of the statement was reversible error. It is also contended that the court's failure to instruct the jury they could not use the statement as substantive evidence was also error. Sutton witnessed a drug transaction, defendant was immediately arrested, defendant confessed. Given these facts, the admission of Brunson's statements in the absence of an instruction cannot be characterized as plain error. It does not "raise a reasonable doubt as whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

Defendant also argues that the submission of Brunson's statement, as well as the admission without objection of Sutton's testimony that defendant wanted to become an informant, constituted ineffective assistance of counsel. These issues involve trial strategy and information outside the trial record.

The question is therefore best addressed by way of an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992). We decline to address it at this time. Brunson was admitted into pre-trial intervention. Thus, either side could have subpoenaed her address from court records. Neither party described making any specific efforts to locate her. The trial court therefore properly refused defense counsel's request for a Clawans charge directing the jury that they could draw an inference that the missing witness would have testified unfavorably to the State. State v. Clawans, 38 N.J. 162, 171 (1962). "The failure to call a witness available to both parties has been said to preclude the raising of an inference against either." Ibid. (citing O'Neil v. Bilotta, 18 N.J. Super. 82, 86 (App. Div.), aff'd 10 N.J. 308 (1952)).

Furthermore, the Clawans inference is not proper where the "testimony would be cumulative, unimportant or inferior to what had already been utilized." Ibid. (citing State v. DePaola, 5 N.J. 1 (1950); Pawlowski v. Marino, 71 N.J. Super. 120 (App. Div. 1961); O'Neil, supra, 18 N.J. Super. at 86). The co-defendant's testimony in this case would at least have been cumulative. There was no error at all in the refusal to give the instruction.

It is mistakenly argued in defendant's brief that defendant was convicted of duplicate charges, as counts six and seven of the indictment mistakenly repeat two earlier captions. The actual text of counts six and seven, although mistitled, charge defendant separately with distributions within 1000 feet of a school zone and 500 feet of a public building, respectively. No error occurred on that score.

The jury, while deliberating, asked a series of factual questions. After consulting with counsel, the court did not answer the questions directly, and merely reinstructed the jury to rely upon their collective memory. Defendant now claims the court erred in not responding "substantively" to the jury's concerns. The reminder, as made by the trial court here, that the jury should rely upon their collective memory was adequate. To have done more may itself have been error.

Defendant was sentenced to longer than the old presumptive term prior to Natale II, supra, 184 N.J. 458. A remand for that purpose is therefore appropriate.

Otherwise the judgment of conviction is affirmed.

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