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In re State ex rel B.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 26, 2008

STATE OF NEW JERSEY IN THE INTEREST OF B.J.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-1024-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 10, 2008

Before Judges A. A. Rodríguez and Collester.

B.J., age sixteen, was adjudicated delinquent for acts which, if committed by an adult, would constitute: aggravated assault, N.J.S.A. 2C:12-1b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and unlawful possession of a weapon, N.J.S.A. 2C:39-5. At a dispositional hearing, Judge Mark A. Baber imposed a three-year term at the Training School for Boys in Jamesburg. We affirm.

Charles Johnson testified that on September 21, 2006, at approximately 2:00 p.m., he was walking home from the store on Martin Luther King Drive in Jersey City. He saw Blackwell, a friend with whom he had grown up. Blackwell told Johnson that two men had just robbed him. The two began walking towards Johnson's house when they saw the two men that Blackwell identified as the ones who robbed him. Blackwell chased the two men. Johnson followed. Blackwell caught one of the two men, later identified as Tyquan Tucker, and began hitting him with a brick. Johnson assaulted Tucker, punching him with his fists.

The other man, who was wearing a black hooded sweatshirt or "hoodie," ran away. He then stopped, turned around and pulled out a gun. He pointed the gun at Johnson from about five feet away and began clicking the trigger, but the gun did not fire. Johnson identified the armed individual as B.J., whom he recognized from the neighborhood. Johnson also identified the gun.

Sometime during the confrontation, another individual, later identified as Shyquan Harrison, arrived on the scene. Harrison asked why Blackwell was hitting his cousin with a brick. Johnson replied, because "your cousin just robbed [Blackwell]." B.J. then passed the gun to Harrison, who ordered Johnson to hand over his money. Johnson said that he did not have any money. Harrison fired the gun three times, hitting Johnson each time. As a result of his injuries, Johnson was comatose for nine days.

Jersey City Police Detective Mark Palughi testified that he arrived at the scene of the shooting and his investigation led him to an apartment on Myrtle Avenue, which was the residence of Catherine Williams, Harrison's grandmother. Williams allowed Palughi and other detectives to enter her apartment and look around. One detective discovered a .40 caliber handgun equipped with a safety lock. Palughi asked Williams if anyone else was in the apartment. She responded that Harrison had been there earlier with someone else and that Harrison got changed and the two left. According to Palughi, Harrison gave him a statement and identified someone. Subsequently, B.J. was arrested.

B.J. testified that on September 21, 2006, he did not go to school and woke up around 11:00 a.m. and went to a friend's house. He played some video games at the friends house until approximately 2:55 p.m. While B.J. was walking to a nearby school, a person from the neighborhood, one "Will" or "William," told B.J. that someone had jumped Tucker and Harrison. He went to the scene with Will. They saw Tucker being put in an ambulance. The two then proceeded to Harrison's grandmother's house. Will left on the way, so B.J. went alone.

When B.J. arrived at Harrison's grandmother's house, he saw Harrison putting on his pants. B.J. asked Harrison what happened, but Harrison said he did not want to talk about it. B.J. left alone. He then took a bus to Lincoln Park where he attended football practice from 3:00 p.m. to 8:00 p.m.

According to B.J., he was wearing a red jacket, jeans, a white t-shirt and a hat on the day in question and at no point was he wearing a black hoodie. He never had or saw a gun that day. He was not present for the altercation that resulted in Johnson being shot. He did not know Johnson or Blackwell. He is "cool" with Harrison and went to see if Harrison was alright, but said that the two were not friends.

On cross-examination, the Assistant Prosecutor asked B.J. if Johnson was lying when he testified that it was him who was at the scene, attempted to shoot Johnson and eventually passed off the gun to Harrison who did shoot Johnson. B.J. replied that Johnson was either mistaken or lying because he was not at the scene at the time of the shooting.

The judge found Johnson's testimony "entirely credible." He found B.J.'s story much less credible. The judge sustained the complaints against B.J.

On appeal, B.J. contends:

BY ASKING B.J. TO CHARACTERIZE THE STATE'S WITNESS AS A LIAR, DEFENSE COUNSEL VIOLATED B.J.'S RIGHT TO A FAIR TRIAL. FURTHERMORE, THE STATE'S QUESTIONS IN THIS SAME VEIN WERE PROSECUTORIAL MISCONDUCT. DEFENSE COUNSEL'S QUESTIONING, WHICH OPENED THE DOOR TO THE STATE'S QUESTIONING WAS CLEARLY INEFFECTIVE ASSISTANCE OF COUNSEL IN DEGRADATION OF B.J.'S RIGHT TO COUNSEL NECESSITATING REVERSAL. U.S. CONST. AMENDS. XIV; V; N.J. CONST. (1947), ART. I, PAR. 10 (Not Raised Below).

We disagree.

Prosecutorial misconduct is only grounds for reversal of a criminal conviction if "the conduct was so egregious it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). See also State v. Bucanis, 26 N.J. 45, 56 (only conduct which "substantially prejudice[s] the defendant's fundamental right to have a jury fairly evaluate the merits of his defense . . . ." warrants reversal), cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958).

When defense counsel fails to object to a prosecutor's questions or summation during trial, it creates an inference that counsel does not perceive the remarks as prejudicial. State v. Irving, 114 N.J. 427, 444 (1989) (citing State v. Johnson, 31 N.J. 489, 511 (1960)). See also Ramseur, supra, 106 N.J. at 323 (when "no objection is made, the remarks usually will not be deemed prejudicial.").

In State v. T.C., 347 N.J. Super. 219 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003), the defendant appealed her conviction, arguing, among other things, that the prosecutor's cross-examination of her, in which she was asked "whether State's witnesses had been lying when they testified against her[,]" mandated reversal of her conviction. Id. at 237. We disagreed, and held that although such questioning was "inappropriate and should not be countenanced[,]" it was not "conduct constitute[ing] a basis for reversing defendant's conviction." Id. at 238. In our decision, which was based on a plain error analysis,*fn1 we explained:

The prosecutor's questions concerned specific inconsistencies between the testimony of the defendant and that of the State's witnesses. The prosecutor did not act improperly in pointing out the inconsistencies; the impropriety lay only in the form used to develop the point. There was no misrepresentation or mis-characterization of anyone's testimony. The discrepancy between the testimony of defendant and that of the witnesses testifying for the State was clear and virtually self-evident. The prosecutor simply highlighted and emphasized those inconsistencies. [Ibid.]

Here, the Assistant Prosecutor's questions did not exceed the bounds of propriety. First, this is the sole allegation of prosecutorial misconduct. Standing alone, such questioning does not warrant reversal. In fact, of all the cases relied on by B.J., only in an unpublished opinion, State v. Johnson, A-2319-02T4 (App. Div. Jan. 27, 2005), was the conviction reversed. See State v. Bunch, 180 N.J. 534, 549 (2004) (holding error harmless); T.C., supra, 347 N.J. Super. at 238 (holding error not one which constitutes a basis for reversal); State v. Green, 318 N.J. Super. 361, 378 (App. Div. 1999) (finding such questioning improper, but not enough so that it was "clearly capable of producing an unjust result."), aff'd o.b., 163 N.J. 140 (2000).

Moreover, the testimonies of Johnson and B.J. could not have been more diametrically opposed. Therefore, it was patently obvious that one had to be lying due to the glaring inconsistencies between the two. Accord T.C., supra, 347 N.J. Super. at 238.

Lastly, we note that this was a bench trial. Therefore, there was no danger that a jury would penalize B.J. for calling Johnson a liar.

B.J. also argues that by characterizing the testimony of Johnson as inaccurate or mistaken, his trial counsel opened the door to this line of questioning. In doing so, he rendered ineffective assistance of counsel. We are not persuaded.

In reviewing claims for ineffective assistance of counsel, we apply the test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The standard is the same for alleged violations of the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chew, 179 N.J. 186, 202-03 (2004). To prove ineffective assistance of counsel in violation of the Sixth Amendment under Strickland, a defendant must show: 1) "counsel's performance 'fell below an objective standard of reasonableness,'" and 2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[.]" Id. at 203 (quoting Strickland, supra, 466 U.S. at 688, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed. 2d at 693, 698).

Here, we conclude that B.J. has not proven that his trial counsel's representation fell outside of "the wide range of reasonable professional assistance." Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). As we have already mentioned, the Assistant Prosecutor's question was not capable of producing an unjust result, thus is was reasonable to not object.

Next, B.J. contends:

THE ADMISSION OF INFORMATION OBVIOUSLY OBTAINED FROM THE NON-TESTIFYING CO-DEFENDANT DENIED B.J. HIS RIGHT TO CONFRONT A WITNESS AGAINST HIM AND HIS RIGHT TO A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS. (NOT RAISED BELOW).

B.J. argues that the Assistant Prosecutor elicited improper testimony regarding Harrison's statement to the police, an error further aggravated by his trial counsel's alleged ineffectiveness on cross examination. These errors, B.J. contends, violated his right to a fair trial, warranting reversal of his delinquency adjudication. We disagree.

The testimony at issue in this Point is as follows:

Assistant Prosecutor: Did you have an opportunity to take a statement from Shyquan Harrison?

Det. Palughi: Yes.

AP: I'm not going to ask you what Shyquan told you. However, did Shyquan Harrison identify anyone?

Det.: Yes.

[The parties then disputed the admissibility of a picture of B.J.]

The Court: So what is it you're going to do? AP: I'm just going to show him the picture, is this who Shyquan Harrison identified, and based on that, Detective Palughi, what action was taken by the Jersey City Police. That's it. . . .

The Court: It doesn't come in substantively as evidence of -- because Shyquan Harrison is not a witness in this trial.

AP: Correct. Unless Shyquan comes in and testifies.

The Court: . . . You can't get that in as an out-of-court identification.

AP: I understand that.

The Court: And I don't see what it is you're trying to do with it then.

AP: I'm trying to close --The Court: [To the Detective] Based on what you developed in your investigation, did you then arrest [B.J.]?

Det.: I didn't arrest him personally, no, but he was arrested by the Jersey City Police Department.

The Court: All right.

Then, on cross examination:

Defense Counsel: Was there anything that occurred or was there an individual identified that satisfied you that this shooting was perpetrated by a particular individual who was acting in concert with another individual? Did you have that information?

Det.: The only information I had is what Harrison told me, and based on that information were left and people were arrested. I didn't arrest him personally, no.

Counsel: Did you arrest Mr. Harrison?

Det.: Yeah. He was arrested.

Counsel: But you did not make an arrest of [B.J.]?

Det.: I personally did not arrest him, no. Counsel: So you don't know why Jersey City Police Department arrested [B.J.]?

Det.: Yeah, they arrested him because Harrison said he was with him.

Counsel: But you don't know that.

Det.: Harrison told me in the statement. . . .

The Court: [Counsel,] you've now gotten in the evidence that I didn't let [the assistant prosecutor] get in in his direct as to what Shyquan Harrison told --

Counsel: No, I -- no, Your Honor. What I'm saying is I'm asking the officer whether or not it was his investigation that placed [B.J.] under arrest or not.

Defense counsel continued to probe Palughi:

Defense Counsel: [W]as it your investigation that caused [B.J.] to be arrested?

Det.: It was Mr. Harrison's statement that caused him to be arrested.

The Court: [To the witness] And that was the statement given to you?

Det.: Yes, sir.

In our view, the brief references to Harrison's statement and its contents were harmless errors. Again, we note that B.J. did not object at trial, R. 1:7-2. Therefore, we review it under the "plain error" standard. R. 2:10-2.

Palughi's testimony that Harrison had said in his statement to police that B.J. was with him at the time of the shooting was error. Harrison did not testify and B.J.'s trial counsel had no opportunity to cross examine him. However, the error was harmless. First, there was ample evidence against B.J. See State v. Roach, 146 N.J. 208, 226 (noting that the question of whether an error is harmless depends upon consideration of the other evidence of guilt), cert. denied, 519, U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). The State's primary witness was Johnson, who testified unequivocally that it was B.J. who initially pointed the gun at him, who attempted to fire it at him and then passed it off to Harrison, who tried to rob him and then shot him three times. Johnson clearly puts B.J. at the scene of the shooting, as well as an active participant in the criminal event, absent Palughi's testimony as to Harrison's statement.

Second, Harrison's statement was hardly conclusive as to B.J.'s guilt. It did place him at the scene, but that alone would not have been sufficient to convict B.J. of the offenses charged. Third, this was a bench trial, not a jury trial. As mentioned above, it is therefore much less likely that Judge Baber gave any consideration to the improper testimony of Palughi. In fact, the judge specifically stated that "[t]his case doesn't rise or fall on Detective Palughi's testimony . . . . [T]he critical testimony is the testimony from Mr. Johnson and the testimony from [B.J.]."

Finally, B.J. contends:

B.J. SHOULD BE GRANTED A NEW HEARING BECAUSE THE ERRORS BELOW WERE CUMULATIVE AND DENIED HIM A FAIR HEARING.

We do not agree.

First, there were no errors, thus no cumulative effect. And, although it is true that "even when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal[,]" State v. Jenewicz, 193 N.J. 440, 473 (2008), that is not the case here.

Affirmed.


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