October 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL E. RUSSELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 02-10-408.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2008
Before Judges Payne and Waugh.
Defendant Michael Russell appeals his convictions for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); third-degree conspiracy to commit burglary, N.J.S.A. 2C:2-6 and 2C:18-2 (count two); second-degree burglary, N.J.S.A. 2C:2-6 and 2C:18-2 (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count five); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven); second-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(1) (count eight); and third-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(2) (count nine). He also appeals his aggregate sentence of seven years in custody with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA). We affirm the conviction and aggregate sentence, but find that the conviction for possession of a weapon for an unlawful purpose in count six merged with the conviction for aggravated assault with a weapon in count nine.
The charges against Russell arose out of an incident that took place on July 15 and 16, 2002, in Phillipsburg. The following facts were adduced at trial. Early in the evening of July 15, Russell and Bashir Muhammad were drinking with friends. According to Muhammad, Russell told him that he knew of a place to obtain money and marijuana. The two men proceeded to an apartment at 29 Lewis Street in Phillipsburg. The apartment was occupied by Thomas Sloan and his girlfriend, Desiree Kise.
Russell, whose nickname was "Twiz," Kise, and Sloan were all known to each other.
At around midnight, Russell and Muhammad pulled their shirts over their heads and entered the second-floor apartment, which was unlocked. They were discovered by Sloan, who had come out of the bedroom after hearing a noise. According to Muhammad, Russell demanded that Sloan "give [him] the shit." Russell advanced toward Sloan, who grabbed his wrists. They began to grapple and headed toward the bedroom, at which time Sloan noticed that Russell was armed with a knife.
Russell then threatened to "kill" and "cut" Sloan. At that point, although Russell's face was still covered by his shirt, Kise said: "Is that you, Twiz? Is that you?" Russell said: "It's not Twiz, it's not Twiz." Kise then pulled the shirt from Russell's face and both she and Sloan recognized him. Kise attempted to dial 9-1-1, but Muhammad knocked the telephone from her hands.
Muhammad pressed Russell to leave, which they did. Sloan and Kise then contacted the police. Russell and Muhammad were arrested shortly thereafter. Russell had a knife in his possession when he was arrested.
Muhammad eventually confessed, and pled guilty to burglary, conspiracy to commit burglary, and hindering apprehension. Muhammad testified for the State. Because Muhammad appeared before the jurors in prison garb and shackles when he testified at Russell's trial in 2002, Russell's first conviction, which included a conviction for first-degree robbery, was reversed on appeal. State v. Russell, 384 N.J. Super. 586 (App. Div. 2006). Russell's second trial, which took place in October 2006, resulted in an acquittal on the robbery charge, as well as the convictions now on appeal.
Russell raises the following issues on appeal:
POINT I: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).
POINT II: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT VI CHARGING THIRD DEGREE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT VIII CHARGING SECOND DEGREE AGGRAVATED ASSAULT, AND FURTHER ERRED BY FAILING TO MERGE COUNT VIII INTO COUNT IV CHARGING SECOND DEGREE BURGLARY. (NOT RAISED BELOW).
POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Russell points to four sections of the State's summation in support of his argument that the prosecutor acted inappropriately. At the beginning of his summation, the prosecutor made the following remarks:
There's no testimony -- Mr. Keys said that -- that -- it's undisputed evidence that Mr. Keys -- undisputed evidence that Sloan --Sloane hated -- hated Russell and Russell hated Sloane and Kise -- undisputed. Unless I missed something, folks, when you go in that deliberating room ask yourselves did you hear that? No.
That's a story. That's a story because when you don't have holes to punch in a case, when you don't -- when you know the case is strong and proven beyond a reasonable doubt then what -- what happens is the defense will say little -- peripheral things to sway you away from what really is happening here, what's really happening here.
Later on in his summation, the prosecutor focused upon defense counsel's cross-examination of co-defendant Muhammad, whose trial attorney had obtained a psychological report questioning his competency to stand trial. In doing so, he made the following remarks:
And Mr. Keys focused on that psychological report. Now this is a report that his attorney -- and attorneys will do things if they are good defense attorneys to do the best for their clients to get less jail time and as little convictions as possible. They are -- they have to do that. It's important.
And this -- when Muhammad -- guilty -- and that's no bearing whether they're guilty or not guilty, that's not the issue. The issue is that's their job to do the best they can for their client. Any defense lawyer who tries to put his client in jail for a lot of years and makes every effort to do that is not going to be very happy with the New Jersey Bar.
Shortly thereafter, the prosecutor argued to the jury that they should find both Kise and Sloan credible. In doing so, he told them the following:
The charges in the indictment, ladies and gentlemen -- so it really does go to --credibility. Do you believe Ms. Kise? Do you believe Mr. Sloan? Did they have reason to lie about this? There was no testimony that they -- Mr. Russell, that they would make up a story and say Mr. Russell did this because -- get hurt or wrongly accused.
There's no evidence of that. They may not have been in love with the man.
Finally, in concluding his summation, the prosecutor asked the jury to return a guilty verdict on all counts, as follows:
He is guilty of all of these counts, ladies and gentlemen, guilty of all these counts.
There is no reason whatsoever not even an inkling, I submit to you, to disbelieve Mr. Muhammad. Please remember the prior testimonies of his and what he said here today.
And I ask that you come back with a fair verdict, the true verdict on this defendant because it has been proven to you beyond a reasonable doubt. Thank you.
There was no contemporaneous objection to any portion of the summation complained about on appeal. After the prosecutor's summation was concluded and the jury had left the courtroom, defense counsel merely asked to place his objection to the denigration of defense counsel on the record. He did not ask the trial judge to take any corrective action.
Because the issue of impropriety in the prosecutor's summation was not raised by defense counsel at trial, it is evaluated on appeal by the plain error standard. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987)(citation omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)).
We believe it important to view the prosecutor's summation in the context of the somewhat unique aspects of the defense in this case. The defense centered not on whether Russell was involved in the events of July 15 and 16, 2002, but whether he was guilty of the first-degree crime, robbery. After his first trial, Russell had been convicted of robbery and sentenced to fifteen years with an eighty-five percent parole disqualifier pursuant to NERA. Russell, supra, 384 N.J. Super. 588-89. It is clear from the record that the overarching strategy of the defense at the second trial was to avoid exposure to the potential fifteen-year sentence. Consequently, defense counsel's own summation focused on: (1) convincing the jury that there was an antipathy between Russell and Sloan arising out of jealousy over Kise, such that Russell's real motive in going to the apartment was to teach Sloan a lesson; and (2) attacking the credibility of Muhammad's testimony because Muhammad was the source of the State's proof that he and Russell went to the apartment intending to commit a robbery.
With respect to the first section of the prosecutor's summation quoted above, Russell criticizes the prosecutor for attempting to mislead the jury into believing that defense counsel had conceded that there was no antipathy between Russell and Sloan, i.e., no reason for Russell to go to the apartment solely for the purpose of assaulting Sloan. However, defense counsel actually made the statement attributed to him by the prosecutor, although it is clear from the context that he did not intend to do so. The transcript of the defense summation contains the following:
It's undisputed, there's no evidence before you that Mr. Sloan didn't like Mike Russell, Mike Russell didn't like Mr. Sloan. Desiree Kise is the reason. Evidence is undisputed that Mr. Russell had expressed affection for Desiree Kise.
The evidence is undisputed that he had -- for lack of a better term -- tried to put the moves on her on numerous occasions. The evidence is undisputed that the last time Thomas Sloan, as he sat there and testified, was two to three months before the events.
And the evidence is undisputed that Ms. Kise said the last time she saw Mike was --to that night. She said no more than a month. She may have even given -- said --such as a week.
My memory doesn't control here. Your memories control when you get in the back and discuss things. Some of you were taking notes, others of you were not. But please talk amongst yourselves. [(emphasis added).]
There was, however, clearly ample evidence in the record from which the jury could have concluded that there was a mutual antipathy between Sloan and Russell.
Nevertheless, we see no basis to conclude that the prosecutor's statement "deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. While the prosecutor's statement was inaccurate in terms of the factual record, it accurately reflected what sounded like a concession to the contrary by defense counsel. We discern no basis to conclude that the prosecutor was being disingenuous in repeating it. More significantly, it appears that the jury was not misled, inasmuch as it acquitted Russell of robbery, which was the overarching goal of the defense strategy.
With respect to the second section of the prosecutor's summation relied upon by Russell, we agree the prosecutor should not have made a statement that could have been interpreted as suggesting that defense counsel will do whatever it takes to obtain an acquittal for their clients. State v. Arker, 265 N.J. Super. 351, 356 (App. Div. 1993) ("'A prosecutor is not permitted to cast unjustified aspersions' on defense counsel or the defense.") (citation omitted). However, when viewed in its full context, the argument was addressed primarily to the efforts made by Muhammad's defense counsel in obtaining a doctor to opine that Muhammad was not competent to stand trial. Based in part on the report, Russell's counsel had urged the jury to disregard Muhammad's testimony that the reason he and Russell went to the apartment was to commit the robbery. The prosecutor was seeking to undercut that argument by attacking the validity of the report questioning Muhammad's competence. Inasmuch as that section of the summation was also addressed to the defense's successful strategy to defeat the robbery charge, we see no basis to conclude that the prosecutor's statements "deprived the defendant of a fair trial."
With respect to the last two sections of the prosecutor's summation, we are satisfied that they represented arguments in support of the credibility of the State's witnesses based upon the trial record and not, as Russell suggests, inappropriate vouching for the State's witnesses. See State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007), aff'd, 195 N.J. 493 (2008). We also disagree with Russell's assertion that the prosecutor made an impermissible, indirect reference to Russell's decision not to take the witness stand by arguing that there was "no evidence" of motive for Sloan or Kise to falsely accuse Russell. See State v. Josephs, 174 N.J. 44, 126 (2002). In short, we see those sections of the summation as "vigorous and forceful" advocacy. See Ramseur, supra, 106 N.J. at 320. Additionally, we see nothing in them to suggest that Russell was deprived of a fair trial.
Russell next raises two merger issues. At sentencing, the trial judge made the following mergers: (1) the conspiracy to commit burglary charge in count two was merged into the burglary charge in count four; and (2) the unlawful possession of a weapon charge in count seven was merged in the possession of a weapon for an unlawful purpose in count six. Russell argues that there should have been two additional mergers. Because the trial judge imposed concurrent sentences, the outcome on the merger issues will not, in any event, effect the aggregate sentence.
First, Russell argues that the conviction for possession of a weapon for an unlawful purpose in count six should merge into the conviction for aggravated assault with a weapon in count eight. Because the jury was charged that the alleged unlawful purpose for Russell's possession of the weapon was "to use it unlawfully against" Sloan, we find that the resulting conviction merges with the conviction for aggravated assault with a weapon against Sloan.
Second, Russell argues that the aggravated assault conviction under count eight should then itself have been merged into the conviction for second-degree burglary in count four. With respect to the merger of the aggravated assault into the burglary count, the jury was instructed that the offense of burglary was a third-degree crime, but that it would rise to a second-degree crime if "in the course of committing the offense . . . the person purposely, knowingly, or recklessly inflicts or attempts to - - threaten serious bodily injury to anyone or is armed with or displays what appears to be an explosive device or weapon, a deadly weapon." The State argues that the offense of second-degree burglary was complete when Russell entered the apartment with a weapon, citing State v. Pyron, 202 N.J. Super. 503, 504-05 (App. Div. 1985). Consequently, the State argues, the second-degree burglary conviction did not rest on the aggravated assault. We agree. In fact, Russell was convicted of two predicate offenses for second degree burglary: aggravated assault and possession of a weapon.
Finally, Russell argues that the aggregate sentence of seven years with a NERA parole disqualifier was excessive. While acknowledging that his conviction for the second-degree burglary warranted a presumption of incarceration, N.J.S.A. 2C:44-1(d), and a sentence within the range of five to ten years, N.J.S.A. 2C:43-6(a)(2), Russell argues that the trial judge incorrectly found and weighed the aggravating and mitigating factors. He submits that, if properly found and weighed, the sentencing factors warranted only a five year sentence, especially given the application of the NERA parole disqualifier.
Our role in reviewing sentences imposed by the trial courts is limited.
An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" should a sentence be modified on appeal. Id. at 363-64. [State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).]
We do not consider whether we would have reached a different sentence, but whether "'on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Munoz, 340 N.J. Super. 204, 222 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001) (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)).
Russell contends that the trial judge erred in applying aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the "extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted." Russell argues that the present offenses were his first indictable offenses. While true, that fact is not determinative. The trial judge properly relied upon Russell's prior juvenile record, while acknowledging that he had "a limited contact with the criminal justice system except for this offense." There was clearly a factual basis for that finding.
Russell next argues that there was no factual basis for the trial judge's finding of aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the "risk that the defendant will commit another offense." At sentencing, defense counsel conceded the applicability of that factor. Also, given the fact that Russell had already served a fifteen-day sentence arising from his first municipal court charge, the factor was clearly applicable. The prior period of incarceration had not deterred Russell's further criminal conduct.
Russell also contends that the trial judge improperly failed to find several applicable mitigating circumstances. He points to mitigating factor four, N.J.S.A. 2C:44-1(b)(4), there "were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." While it was apparently true that Russell had a drug problem, we are satisfied that the trial judge could properly have determined on the record before him that his drug problem did not "tend to excuse or justify the defendant's conduct."
Russell also argues that the trial judge should have found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that "imprisonment of the defendant would entail excessive hardship to himself or his dependents," citing to the fact that he has two children. While we note that Russell had been incarcerated for an extended period of time, there is nothing in the record to suggest that he was supporting his children, financially or emotionally, prior to his arrest. Because there was no factual support for a finding that Russell's incarceration would "entail excessive hardship" on his children, we find no basis to overturn the trial court's contrary determination on that issue.
Because we have concluded that the trial judge properly weighed the aggravating and mitigating factors, we find no basis to conclude that he abused his discretion in imposing a sentence in the middle of the sentencing range.
In summary, finding no merit in any of Russell's contentions, we affirm both the conviction and the aggregate sentence in their entirety, noting only that the conviction for possession of a weapon for an unlawful purpose in count six merged with the conviction for aggravated assault with a weapon in count nine.
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