October 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK SCOTT, A/K/A JOHN SCOTT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-12-2806.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Parker and Yannotti.
Defendant Frederick Scott was tried to a jury and found guilty of possession of a weapon, in violation of N.J.S.A. 2C:39-5d, obstructing the administration of the law, in violation of N.J.S.A. 2C:29-1; resisting arrest by flight, in violation of N.J.S.A. 2C:29-2a(3); and injuring a dog used for law enforcement, in violation of N.J.S.A. 2C:29-3.1, as charged in Indictment No. 05-12-2806. Defendant was sentenced on September 8, 2006 to an aggregate term of four and one-half years of incarceration.*fn1 He appeals from his conviction. For the reasons that follow, we affirm.
At defendant's trial, the State presented evidence that in October 2005, the Galloway Township Police Department (GTPD) had received complaints of burglaries and suspicious activities in the area of the Maddox Run Club II apartment complex. Carol Maher (Maher) testified that, in the early morning hours of October 23, 2005, she observed what she said was a "strange person" walking behind her townhouse in Building 21 of the Maddox Run complex. According to Maher, the individual was "a tall, thin person dressed in dark clothing, with a dark hood." She assumed that the individual was a male. He was walking briskly through her back yard. Maher phoned the police and reported what she had seen.
Officer Hiram Melendez (Melendez) of the GTPD testified that he was assigned to the GTPD's canine unit for patrol assignment. He worked with a German Shepherd named Chase. Melendez said that, at approximately 2:48 a.m. on October 23, 2005, he was told to report to the Maddox Run complex. He said that the GTPD had received a call from Bernie Spaulding, who reported that he observed a suspicious looking male in the area, wearing a dark hooded sweatshirt and dark clothing. Melendez and Patrolman William Kline (Kline) responded quickly to the scene. They parked at the club house in a marked patrol car. They exited the car and started walking around the apartment complex. Melendez had Chase on a leash.
Melendez said that they were in a small patch of woods between Buildings 29 and 34. Melendez put Chase in a "lay down position." They were directly behind the residence of the caller. Melendez said that they saw a motion light come on. Melendez observed defendant "walking from around the building."
Defendant walked to within seven to ten feet from where Melendez and Kline were standing. Melendez illuminated his flashlight and called out, "Galloway Township Police." Defendant did not respond verbally, but he pulled out a knife and kept walking towards Melendez. Melendez reached for his weapon. Defendant looked at Melendez, spun around, and started to run away.
Melendez gave defendant the GTPD's "standard canine announcement." He said, "police, you're under arrest. Stop or I will release my police dog, who will bite you." Defendant continued to run. Melendez and Chase ran after defendant. Melendez said that defendant was far ahead of him but still within sight.
Melendez unleashed Chase. The dog caught up with defendant and grabbed defendant's sweatshirt in his mouth. Defendant kicked and punched the dog. Melendez said that it appeared that defendant was punching Chase on top of the dog's head. Melendez saw the dog "come off" of defendant, and he heard the dog cry out loudly. The dog wound up lying almost on his side. Defendant started to flee again.
Melendez told Chase to get up and he directed him towards defendant. The dog complied. He grabbed defendant by the calf. Defendant began to kick the dog. Melendez told defendant to stop resisting. Defendant hit Melendez in the chest and they both wound up on the ground with the dog. At that point, defendant gave up. Melendez and Kline flipped defendant over, and Kline found the knife underneath defendant's body. Defendant was placed into handcuffs and other officers arrived on the scene. Defendant was taken to a hospital, where he was examined.
Melendez checked the dog and observed that the dog's left front paw was bleeding. Melendez drove Chase to an animal hospital, where he was seen by a technician. The technician did not find a cut under the dog's hair. Chase was out of work for several days. During that time, Melendez noticed that the dog "wasn't himself."
Melendez also testified that, several days later, Chase was limping during a law enforcement demonstration at the local high school. Melendez checked the dog's left front paw and found that it was bleeding from the same spot it bled on the night of defendant's arrest.
Detective Eric Hendrickson (Hendrickson) of the GTPD took photos of defendant's injuries. A short while later, defendant was transported to police headquarters, where Hendrickson interviewed him. Hendrickson gave defendant Miranda*fn2 warnings. Defendant agreed to waive his rights and speak to Hendrickson.
Hendrickson asked defendant why he was "out and about at that hour of the night." Defendant said that he was "outside[,] getting some fresh air, [and] having a smoke." Hendrickson asked why defendant was carrying a knife. He replied that he carried it to protect himself because there were burglars in the area. Hendrickson testified that he "began to get a little more accusatory in [his] questioning" and asked if defendant knew about the burglaries. Hendrickson stated, "at that point [defendant] kind of clammed up and indicated to me that he didn't want to speak to me anymore." At that point, the interview ended.
On this appeal, defendant raises the following issues for our consideration:
INFORMING THE JURY THAT [DEFENDANT] "CLAMMED UP" IN THE FACE OF ACCUSATORY INTERROGATION VIOLATED HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF INCRIMINATION.
PROSECUTORIAL MISCONDUCT DURING OPENING AND DIRECT EXAMINATION OF [OFFICER] MELENDEZ DEPRIVED [DEFENDANT] OF A FAIR TRIAL. U.S.
Const., Amend. V, VI, XIV; N.J. Const., Art. I, ¶ 10.13.
THE ERRORS ASSERTED IN POINTS I AND II, supra, REQUIRE REVERSAL UNDER THE CUMULATIVE ERROR DOCTRINE (Not Raised Below).
We turn first to defendant's contention that his right against self-incrimination was violated when Detective Hendrickson testified that defendant "clammed up" after he was questioned about the burglaries in the Maddox Run apartment complex. Defendant contends that the evidence was irrelevant. Defendant notes that he was never charged with any of those burglaries, and argues that the subject was interjected gratuitously into the trial to make him appear "suspicious, unsavory, and guilty of something, even if not the crimes charged in the indictment." We disagree.
References to the exercise by a defendant of his right to counsel or right to remain silent are permissible if such evidence is necessary to explain why police questioning of the defendant ended. State v. Feaster, 156 N.J. 1, 75-76 (1998), cert. denied sub nom., Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Carroll, 256 N.J. Super. 575, 601-02 (App. Div.), certif. denied, 130 N.J. 18 (1992); State v. Ruscingno, 217 N.J. Super. 467, 471-72 (App. Div.), certif. denied, 108 N.J. 210 (1987).
When such testimony provides substantial evidence with regard to defendant's statements about the charged offense, such that a jury without further information would be naturally inclined to question why testimony regarding subsequent events was not offered, a trial court may in its discretion permit testimony explaining why an interview or interrogation was terminated. Such discretion properly would be exercised only if the testimony is essential to the complete presentation of a witness's testimony and its omission would be likely to mislead or confuse the jury. In those instances, a cautionary instruction should be provided that explains to the jury that people decline to speak with police for many reasons, emphasizing that a defendant's invocation of his right to counsel or right to remain silent may not in any way be used to infer guilt.
[Feaster, supra, 156 N.J. at 76.]
In this matter, defendant agreed to submit to police questioning. He admitted that, on the night of his arrest, he was in possession of a knife but claimed that he needed the knife for self-protection from burglars in the area. The testimony that defendant "clammed up" after being questioned about the burglaries explained why the interview ended, and also provided the jury with an explanation why the police did not question him further regarding the weapon.
Moreover, earlier in the trial, during Officer Melendez's testimony, the judge instructed the jury:
Now, you've heard evidence already that Galloway Township Police received reports of suspicious activities. There's been some evidence of sightings of people, or persons, in the neighborhood of the Maddox Run II Apartment Complex. And this evidence is being offered to explain the following: Why the residents called the police in the first place, why the police responded to the complex on October 23, 2005, and to explain the manner in which they responded to the call. The evidence is not being offered to prove, or show, that it was the [d]efendant who was the individual involved in any of the suspicious activities, or what may be referred to as burglaries, the prior complaints or any other prior criminal activity that happened in the complex prior to October 23, 2005. You may not consider the evidence for that purpose. You may only consider that evidence as it relates to the actions of residents and [the] police on October 23, 2005. [Defendant] was never arrested or charged with any burglaries in Maddox Run. . . . The police were there because of prior complaints in the complex, and not necessarily because of [defendant].
After Hendrickson testified about his questioning of defendant, the judge repeated these instructions.
Furthermore, in his final charge, the judge reiterated the limiting instructions. The judge also stated that the State had the burden of proof on all elements of the charged offenses. He noted that defendant had elected not to testify at trial and that defendant had a constitutional right to remain silent.
We are satisfied that the evidence that defendant terminated the interview was relevant, necessary for a complete presentation of Hendrickson's testimony, and its omission could have misled or confused the jury. Ibid. In addition, the judge's instruction cured any potential for prejudice that might have arisen from admission of this evidence. We therefore reject defendant's contention that his right against self-incrimination was violated by Hendrickson's testimony regarding his questioning of defendant.
Defendant next argues that he was deprived of his right to a fair trial because of certain statements made by the assistant prosecutor in her opening statement. The assistant prosecutor said that the police "are here to serve and protect." She noted that a policeman's job is "difficult," "dangerous," and at times "thankless." She said that police dogs "are also here to serve and protect[.]" She noted that police dogs "can protect people." She added that police dogs are often placed in "intense" situations and face risks that are "greater than that of the actual officer."
In addition, the prosecutor stated that a patrol officer has one of the "most dangerous" jobs in law enforcement. She asserted that:
[t]hey are the men and women out there making arrests, responding to calls of distress, [and] reports of crime happening. And the patrol officer knows that the potential for danger is always there. Whether they're handling a motor vehicle stop, whether they're responding to a 911 domestic violence complaint, or whether they're responding to a report of a suspicious person that happens to be in someone's neighborhood. And that is the case you're about to hear.
The prosecutor also stated that, as members of the public, "we have an interest in police officers and dogs being able to go about their jobs, place people under arrest who are committing crimes, without any extra danger or violence, because the [jobs are] already dangerous." She added that:
[w]e want people . . . to cooperate with police when they're acting in their official authority in an arrest situation. We want people to not struggle, to not fight, to not run away, because when they do that, when they choose not to cooperate, and choose instead to . . . resist, to struggle, to fight, they create a situation that not only puts the officer in danger, but themselves in danger, and any other innocent bystander, or third party, that happens to be around.
Now this risk of violence or danger that is present in these situations is viewed so seriously by our [L]egislature in New Jersey that we have made it a crime to resist a police officer when [he is] acting in [his] official capacity in an arrest situation. The same thing applies for the dogs. When a police dog is being used in its official capacity, it's a crime to purposely injure them, or maim them. We want people to cooperate. And the whole reason, the whole purpose in . . . criminalizing this conduct, and creating these offenses is to prevent . . . an arrest situation from escalating and transforming into something violent, like a fight or even worse, a tragic situation.
Defendant contends that the prosecutor's remarks suggested to the jury that the testimony of police officers should be accepted uncritically. He asserts that the prosecutor urged the jury to be sympathetic to, rather than impartial, concerning the "actions and plight" of the dog involved in his arrest. Defendant argues that the prosecutor erred by using the word "we" and identifying the "interests" that members of the public have in common. Defendant says that the prosecutor urged the jury to decide the case based on these "common interests" rather than by applying the law to the facts. Defendant also says that the prosecutor erred by speculating as to the Legislature's intent in enacting statutes establishing the offenses with which he was charged. Again, we disagree with defendant's arguments.
A prosecutor is "permitted considerable leeway to make forceful, vigorous arguments" to a jury. State v. Nelson, 173 N.J. 417, 472 (2002) (citing State v. Chew, 150 N.J. 30, 84 (1997)). We must assess the propriety of the prosecutor's comments "in the context of the entire trial record." Ibid. (citing State v. Morton, 155 N.J. 383, 419-20 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001)). Even if they are considered to be improper, a prosecutor's comments will not result in the reversal of a conviction unless the misconduct "was so egregious as to work a deprivation of a defendant's right to a fair trial." Ibid. (quoting State v. Pennington, 119 N.J. 547, 566 (1990)).
In determining whether a prosecutor's statements denied defendant a fair trial, we must consider among other things whether defense counsel made a "timely and proper objection" to the statements. State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-42 (1953)). "If no objection is made, the remarks usually will not be deemed prejudicial." Ibid. (citing Bogen, supra, 13 N.J. at 141-42). "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).
In this case, defense counsel did not object to the prosecutor's remarks. We therefore must assume that counsel did not believe the remarks were prejudicial. Moreover, when viewed in the context of the entire trial record, it is clear that the remarks were not improper. We are satisfied that the assistant prosecutor's remarks did not deny defendant of his right to a fair trial.
Lastly, defendant argues that the cumulative error doctrine requires that his conviction be set aside, and the matter remanded for a new trial. In our view, this contention is not of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).