August 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL BRIGHT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-3691.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2008
Before Judges Wefing, Parker and Lyons.
Defendant Michael Bright appeals from a judgment of conviction entered on November 9, 2004 after a jury found him guilty of first degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first degree attempted murder, N.J.S.A. 2C:11-3(a)(3); two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree eluding, N.J.S.A. 2C:29-2(b). After the appropriate mergers, defendant was sentenced to an aggregate term of fifty-five years, thirty-five of which are subject to eighty-five percent parole ineligibility. We affirm.
These charges arose out of an incident that occurred on November 25, 2001. When a drug deal went awry, defendant began shooting at people in the hallway of 57 South Walnut Street, East Orange. Police Officer Paterson Pasteur testified that when he arrived at the scene, he saw five shell casings on the hallway floor. The victim of the shooting, Aleka Trought, was in the basement of the building. Trought was not responsive when the officer arrived and was subsequently pronounced dead at the scene. The medical examiner testified that Trought suffered five gunshot wounds. Another victim of the shooting, Basiyr Powell, took a cab to St. Michael's Hospital.
During the investigation, it was disclosed that Powell was the drug dealer and he admitted that he was shot after "a guy and girl came to rob him." Powell described the man who shot Trought as a thirty-seven or thirty-eight-year-old dark skinned, six-foot-one inch male with dreadlocks and wearing a "skullie."
Other eyewitnesses similarly described the individual, later identified as defendant.
On November 26, at about 11:45 p.m., East Orange Police Officer Altwain Burwell was on patrol when he observed a blue Isuzu with Virginia license plates. The driver matched the description of the shooter. Burwell attempted to stop the vehicle with his lights and sirens but defendant did not stop and led police on a high speed chase. When they reached the City of Elizabeth, Lt. Joseph Mularz of the Elizabeth Police Department, joined the chase. Defendant ran a red light and hit another vehicle on North Broad Street. After the collision, defendant spun around and headed toward Mularz. Defendant collided with the police vehicle, and his car was pinned to the curb. When defendant attempted to get out of his car, the officers saw him drop a black semi-automatic Glock handgun and a skullie. Mularz and Burwell arrested defendant and recovered the gun, which was loaded with nine rounds. Ballistics testing indicated that the five shell casings found at the scene of the shooting at 57 South Walnut Street came from the same gun.
In this appeal, defendant argues:
THE JURY'S EXPOSURE TO A NEWSPAPER ARTICLE THAT DESCRIBED DEFENDANT'S PRIOR RECORD DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10
IMPROPER SUMMATION REMARKS, OBSERVING THAT THE DEFENSE DID NOT PRESENT ITS OWN EXPERT WITNESS AND THAT DEFENDANT HAD NOT EXPLAINED HIS POSSESSION OF THE GUN THAT KILLED THE VICTIM, INFRINGED DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)
INADEQUATE JURY INSTRUCTIONS ON THE RISK OF DEATH OR INJURY AS AN ELEMENT OF SECOND-DEGREE ELUDING DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)
THE AGGREGATE V.C.C.B.*fn1 PENALTY OF $9,700.00 WAS MANIFESTLY EXCESSIVE Defendant first argues that after a copy of the Star-Ledger with an article discussing defendant's criminal history was discovered in the jury room, the trial judge should have conducted voir dire of each juror individually to determine whether any of them had been exposed to the article and whether it affected their ability to render an impartial verdict.
During jury selection, the trial judge noted that a Star-Ledger reporter was in the courtroom. He explained to the jurors that they could consider only the evidence presented at trial and instructed them not to look through the Star-Ledger for reports about the case. The judge later reminded the jurors that the case may be reported in the Star-Ledger but that they must disregard any such outside sources.
After the first day of trial, the prosecutor noted that the Star-Ledger reporter was in the courtroom and the judge again reminded the jurors not to look for the case in the newspaper. The following day, however, during a recess, the judge sent a court officer to the jury room to retrieve any copies of the Star-Ledger, which may be there. Defense counsel requested, and the judge agreed, to reinstruct the jurors.
Thereafter, the judge told the jurors that he had removed the article from the Star-Ledger, reminded them that the news accounts could be inaccurate and that they must consider only the evidence presented in the courtroom. He then asked the jurors as a group if anyone had read the article. They responded collectively, "No." The juror who had brought the paper identified himself and said that he saw the headline but did not read the article.*fn2 The judge again instructed the jurors not to look at any articles about the case.
In this appeal, defendant argues that the Star-Ledger article had the propensity to "poison" the jury and he is therefore entitled to a new trial.
"[T]he trial court [must] ensure that jury deliberations are based solely on the evidence and in accordance with proper and adequate jury instructions." State v. Josephs, 174 N.J. 44, 91 (2002). In State v. Bey, 112 N.J. 45 (1988), the Court established the standard for determining when a piece of potentially damaging external information may contaminate the jury:
The presumption that jurors will faithfully adhere to the trial court's instructions regarding all facets of their role is not inviolate. . . . "[In a publicity-laden trial] [a]nother alternative [to sequestration] is clear and definitive instructions to the jury not to read or listen to media reports of the trial and to decide the issues only on evidence presented in open court. Realistically, however, in many cases it would be difficult to conclude that a jury could avoid receiving such reports or that such instructions, no matter how forceful, would overcome prejudice to a defendant resulting from the jury learning of a confession or other evidence which the trial court had ruled was inadmissible." . . . Courts have agreed that publicity- related warnings may be inadequate when inherently prejudicial information has been released or published during a trial in such a manner as to render it likely that one or more of the jurors could have been exposed. [Id. at 81 (quoting State v. Allen, 73 N.J. 132, 142 (1977)).]
The Court established a two-part test to determine whether such information is potentially damaging to a defendant's constitutional rights. Id. at 84-87. "The court should first examine the information disseminated to determine if it has the capacity to prejudice the defendant." Id. at 84. Second, [i]f the court is satisfied that the published information has the capacity to prejudice the defendant, [the court] should determine if there is a realistic possibility that such information may have reached one or more of the jurors. Relevant considerations include the extent, notoriety, and prominence of the media coverage, with particular reference to the aspects found potentially prejudicial by the [c]court. . . .
Where the court concludes there is a realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of jury, it should conduct a voir dire to determine whether any exposure has occurred. If there is any indication of such exposure or knowledge of extra-judicial information, the court should question those jurors individually in order to determine precisely what was learned, and establish whether they are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court.
[Id. at 86-87.]
The Court further explained that, although the form of voir dire is discretionary, polling the jurors individually, in camera, is the most effective method to ensure juror truthfulness, and a court may want to "err on the side of caution" by conducting individual juror polling. Id. at n.26, 89.
In State v. Feaster, 156 N.J. 1, 53-54 (1998), the Court found that the trial court acted properly in polling jurors as a group even though there was a realistic possibility that publicity reached jurors. The court had conducted an extensive pretrial voir dire of the jurors, and issued instructions throughout the trial to avoid such publicity. Id. at 54. "Unlike [State v. Bey], this was not a case in which the court simply told the jurors to come forward if they were ever exposed to publicity; the court did conduct collective voir dire on several occasions during the course of the trial." Ibid. There was no evidence that any prejudicial information actually reached the jury. Ibid.
"[T]he trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." State v. R.D., 169 N.J. 551, 557-58 (2001). The Court explained that, even if an individual juror has been exposed to outside information, a new trial is not necessarily required. Id. at 559. "That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." Ibid. Moreover, "[t]he abuse of discretion standard of review should pertain when reviewing such determinations of a trial court. Application of that standard respects the trial court's unique perspective. We have traditionally accorded trial courts deference in exercising control over matters pertaining to the jury." Id. at 559-60.
Here, defendant argues that there was a particularly damaging sentence in the newspaper article: "Bright, who is already serving eight to eleven years in New Jersey State Prison for an armed robbery two months prior to the incident, began his trial yesterday for the murder of Trought." Defendant contends that the possibility of the jurors becoming aware of his previous conviction for armed robbery is tantamount to jury poisoning.
In the cases relied upon by defendant, the trial court established that jurors had actual knowledge of the prohibited information. State v. Bisaccia, 319 N.J. Super. 1, 14 (1999); State v. Kociolek, 20 N.J. 92, 103-04 (1955); Mattox v. U.S., 146 U.S. 140, 150-51, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921 (1892). Here, there was no evidence that any of the jurors learned anything about defendant's prior conviction. The judge polled the jury as a group and individually questioned the juror who brought the newspaper to the jury room. Defendant never requested individual voir dire, but moved for a mistrial.*fn3
After carefully reviewing the record respecting this issue, we find that two-prong analysis articulated in Bey was satisfied and the trial judge acted within his discretion in questioning the jurors as a group. Feaster, supra, 156 N.J. at 53-54. We find no error warranting reversal.
Defendant next argues that the prosecutor's comments in summation resulted in undue prejudice, requiring reversal and a new trial. Specifically, defendant complains of the prosecutor's comment that the State had presented a ballistics expert who testified that the shells recovered at the scene were fired from the gun found at the time of defendant's arrest. The prosecutor then stated, "There's no expert that says anything different." Defendant contends that this comment violates his Fifth Amendment right by suggesting that defendant should have presented his own expert to challenge the State's evidence. We disagree.
When reviewing a claim of improper prosecutorial comment, we must determine whether "the misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Ramseur, 106 N.J. 123, 322 (1987). In doing so, we focus on certain factors such as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322-23.
Remarks in summation must originate from legitimate inferences drawn from the facts as they are established at trial. State v. Perry, 65 N.J. 45, 47-48 (1974); State v. Mayberry, 52 N.J. 413, 437 (1968).
Generally a prosecutor, in his summation, may discuss only the facts shown or reasonably suggested by the evidence. But so long as he confines himself to the facts and reasonable inferences, what he says in discussing them, by way of comment, denunciation or appeal, will afford no ground for reversal. [State v. Johnson, 31 N.J. 489, 510 (1960) (citations omitted).]
Prosecutors are the representatives of the government, and are expected to "promot[e] the interest of truth." State v. Bucanis, 26 N.J. 45, 56 (1958). The atmosphere of a criminal trial is often highly charged, however, and "a prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." Johnson, supra, 31 N.J. at 510-11. "A timely objection gives the trial court and the prosecutor an opportunity to counteract the effect of any unseemly remark. In many cases the possibly prejudicial impact of the prosecutor's remarks can be eliminated by such corrective action." Ibid. Where there is no objection at trial, we presume defendant perceived no prejudice. State v. Macon, 57 N.J. 325, 336 (1971).
Absent a timely objection at trial, "defense counsel is not ordinarily free to scrutinize the record at his later leisure and to secure reversals upon the basis of what he thus discerns as error, unless it definitely comes within the scope of our plain error rule." Bucanis, supra, 26 N.J. at 57. Because the issue was not raised at trial, the plain error rule applies. R. 2:10-2 provides:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
Here, the prosecutor's comments were clearly in direct response to defendant's summation in which counsel attempted to discredit the State's expert. In response, the prosecutor reminded the jury that there was only one expert. Moreover, the trial judge properly instructed the jury on its consideration of expert testimony and burden of proof.
We find no error, much less plain error, in the prosecutor's remarks.
Defendant next argues that the trial court erred in its jury instruction on the risk of death or injury as an element of second degree eluding. He contends that the trial court's instruction included a "permissive inference of injury arising from motor vehicle violations [but] failed to explain the elements of the applicable motor vehicle violations." Defendant maintains that this omission is reversible error because it deprived him of due process and a fair trial. Again, we disagree.
In its instruction on eluding, the trial court stated:
You may infer risk of death or injury to any person if defendant's conduct in fleeing, or in attempting to elude the police officer, involved a violation of the motor vehicle laws of this state.
While the trial judge provided the jury with all of the elements of the criminal statute, he did not, in fact, instruct the jury on the motor vehicle offenses. Defendant did not object at the time, however, and the plain error rule applies.
We review a jury charge in its entirety to determine whether it was in error. State v. Wilbely, 63 N.J. 420, 422 (1973). Neither party is entitled to have the jury charge reflect specific wording requested. State v. Thompson, 59 N.J. 396, 411 (1971); Kaplan v. Haines, 96 N.J. Super. 242, 251 (App. Div. 1967), aff'd, 51 N.J. 404 (1968), overruled on other grounds by Largey v. Rothman, 110 N.J. 204, 206 (1988).
Defendant relies on State v. Dorko, 298 N.J. Super. 54, 60 (App. Div. 1997), in which we reversed the defendant's conviction because of the trial court's failure to explain the elements of motor vehicle offenses. Dorko is distinguishable from this case, however.
In Dorko, the car chase took place at night without ending in a crash. Id. at 56. There was no testimony as to whether any person was in danger because of the defendant's driving. Ibid. Here, the court instructed the jury: "[y]ou may infer risk of death or injury to any person if defendant's conduct in fleeing, or in attempting to elude the police officer, involved a violation of the motor vehicle laws of this state." The Judge continued:
[a]t the same time, remember that you are never required or compelled to draw this inference. As I have already explained, it is within your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference, and you are always free to accept or reject any inference, if you wish.
The jury instruction made it clear that the jurors were free to accept or ignore any inference. Moreover, there was testimony that defendant led police on a high speed chase through the streets of East Orange and Elizabeth, failed to stop at several traffic lights, cut through a gas station, drove at night with his lights extinguished and, most importantly, ended the chase when he collided with another vehicle. The undisputed evidence clearly demonstrated a risk of death or injury to "any person." Accordingly, although a jury instruction on the motor vehicle offenses was preferable, it was not necessary here. N.J.S.A. 2C:29-2b. There was no plain error.
Finally, defendant argues that $9,700 in VCCB penalties is excessive. VCCB penalties range from $100 to $10,000 for each violent crime. N.J.S.A. 2C:43-3.1a. Here, the court imposed $7,500 on the first degree murder, $5,000 on the first degree attempted murder and $50 on each of the remaining counts. After defendant objected to the amount at sentencing, the court reduced the VCCB penalty on the attempted murder charge from $5,000 to $2,000. The penalty is discretionary so long as the sentencing court takes the statutory guidelines into account, N.J.S.A. 2C:43-3.1a(1), and states its reasons for the imposition of the penalty. State v. Premone, 348 N.J. Super. 505, 515-16 (App. Div. 2001).
The trial judge stated that he considered defendant's prior criminal history, the victim's death and the crime victims' statements in determining the amount of the VCCB penalty. We are satisfied that the court imposed the penalty within the Guidelines and that, under the circumstances, it was not excessive. See State v. Roth, 195 N.J. 334, 361 (1984).
We have carefully considered all of defendant's arguments in light of the applicable law and we are satisfied that there are no remaining arguments having sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).