December 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KWAME JOHNSON A/K/A JEFFREY JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-01-0066.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2008
Before Judges Fuentes and Gilroy.
Defendant Kwame Johnson was tried before a jury and convicted of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1), third-degree possession of cocaine and heroin with intent to distribute, N.J.S.A. 2C:35-5b(13), and possession of cocaine and heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. After granting the State's motion for an extended term under N.J.S.A. 2C:43-7c and N.J.S.A. 2C:43-6f, the court merged the possessory and intent offenses with the school property offense, and sentenced defendant to a term of ten years, with five years of parole ineligibility, imposing the mandatory fines and penalties. We affirm.
In the early morning hours of November 4, 2004, Asbury Park Police Officer Jose Cruz responded to the intersection of Springwood and Ridge Avenues to follow up on an anonymous call requesting service. As he approached in his marked police car, Cruz observed a man standing on the corner. When Cruz reported his observations to dispatch, the man (subsequently identified as defendant) began walking south on Ridge Avenue. As Cruz followed him, defendant repeatedly looked back at Cruz before dropping two packages over his shoulder.
Cruz immediately stopped his car and picked up the two packages defendant had dropped; they contained 48 smaller glycine packages of heroin. At this point, Asbury Park Police Officer Brian Townsend pulled in front of Cruz's patrol car, stopped defendant and placed him under arrest. During a search of defendant's person, Townsend recovered an 8.27 gram rock of cocaine from defendant's thermal underwear, a cell phone, and $184 in cash from his pants pocket.
At trial in addition to Cruz, the State presented the testimony of Asbury Park Detective Barry Graves, whom the court qualified and admitted as an expert in the field of possession, packaging and the distribution of controlled dangerous substances. After being asked a hypothetical question mirroring the facts of this case, Graves opined that the individual possessed the illicit drugs with the intent to distribute. He based his opinion on the location of the arrest, the quantity of drugs confiscated, and the amount of cash the individual had on his person.
Defendant testified in his own defense. He admitted to possessing the cocaine and heroin, but denied that he intended to sell or otherwise distribute the drugs. The jury convicted defendant on all counts.
Against these facts, defendant now appeals raising the following arguments:
THE STATE'S RELIANCE ON AN ABSENTEE WITNESS TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSY CONSTITUTION. (Not Raised Below)
THE USE OF EVIDENCE OF THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST TO PROVE HIS GUILT VIOLATES THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE OF GUILT BY ASSOCIATION. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OT [SIC] THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT.
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
THE DEFENDANT INCORPORATES BY REFERENCE THE PRO SE ARGUMENTS ADVANCED BY THE DEFENDANT AND ATTACHED AS DA. 12 TO 17.
We reject these arguments and affirm. We note that the arguments in Points I, II, III, and IV were not raised as objections before the trial court. We are thus bound to review these arguments under the plain error doctrine. R. 2:10-2. This means that we disregard any error or omission not "clearly capable of producing an unjust result." State v. Castagna, 187 N.J. 293, 312 (2006).
With respect to the argument raised in Point I, we are satisfied that the trial court did not commit any error, much less plain error, in admitting Cruz's testimony explaining the reasons for being in the area where defendant was apprehended. This testimony is not hearsay, and is expressly admissible to "'show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct.'" State v. Kemp, 195 N.J. 136, 154 (2008), (quoting State v. Bankston, 63 N.J. 263, 268 (1973)).
Defendant argues in Point II that the prosecutor improperly commented on his silence at or near the time of his arrest, by making the following remarks during summation.
The location. The intersection, a hot spot in Asbury Park. He's standing on the corner. Not in and out. Standing. Walks away when the police arrive. I don't do anything. I didn't do anything. What? And the defendant's description of how he reacted to the police was a lot more animated than the officers. What? What?
They walked up to me, what was I going to do? I don't know. If you didn't do anything, why don't you stand there? Can I help you? Yeah, I know I'm not lost. (Emphasis added)
In State v. Elkwisni, 190 N.J. 169, 181 (2007), the Court made clear that it is improper for the State to comment on any failure or delay by defendant to furnish exculpatory information to the police. We have recently reaffirmed our commitment to this constitutional principle in State v. Noble, 398 N.J. Super. 574, 588 (App. Div.), certif. denied, 195 N.J. 522 (2008). We thus expect competent prosecutors to refrain from commenting on a defendant's silence at or near the time of his or her arrest. Here, there is no doubt that the comments made by the prosecutor in the course of her summation violated this proscription.
Despite having reached this conclusion, we are satisfied that the error does not warrant the reversal of defendant's conviction. As noted earlier, defense counsel did not object at the time the prosecutor made this comment. Thus, we are bound to apply a plain error standard of review. Under the circumstances presented here, we are convinced that the error was not "clearly capable of producing an unjust result." R. 2:10-2.
We reach this conclusion for two reasons. First, the remark, although clearly improper, was nevertheless fleeting. As such, it did not have the capacity to compromise the integrity of the trial. Elkwisni, supra, 190 N.J. at 181. Second, defendant testified and admitted to possessing the illicit drugs. Thus, the only issue in contention before the jury was defendant's reasons or intentions for possessing the drugs. In this light, the jury could have attributed defendant's failure to provide an exculpatory explanation for being at the scene, to an entirely reasonable fear on his part to being arrested for possessing the drugs. His intentions for such possession are not implicated in the prosecutor's unfortunate and improper remarks.
Defendant's arguments in Points III and IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We will therefore next address the argument raised in Point V, alleging prosecutorial misconduct based on the following remarks made during summation.
Recall and relate. The defendant remembers exactly what time he woke up. Exactly what time he woke up, because he got arrested, he got jammed up. They were [defense counsel's] words. It's a traumatic event in his life, he remembers it. Think about traumatic events in your own life. Do you remember exactly what time you woke up? I don't. I remember the event, I couldn't tell you what I was doing five minutes before. . . . My son was in an accident. It was 5:35 the ambulance came to my house. I can't tell you what I was doing that morning, I can't tell you what I had for lunch, I can't tell you anything else. But I know what time the ambulance came.
I asked him about the other dates he got arrested. He doesn't remember those times.
So were they not traumatic events for him?
Think about that. Did he recall and relate?
Can he or is it convenience? (Emphasis added.)
Defense counsel objected to the prosecutor's injection of a personal story as not relevant to any evidence adduced at trial; the trial court overruled the objection. Prosecutorial misconduct warrants reversal when it is so egregious that it operates to deprive a defendant of a fair trial. State v. Nelson, 173 N.J. 417, 463 (2002). In order to determine whether the particular misconduct was sufficiently egregious to warrant reversal, we "must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks [be] stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999).
We must first determine whether the remarks were proper. In State v. Lopez, 359 N.J. Super. 222, 238 (App. Div. 2003), certif. denied, granted sub nom, State v. Garcia, 177 N.J. 576, appeal dismissed per stipulation, 178 N.J. 372 (2003), the prosecutor made the following remarks intended to question a defendant's credibility:
She lied about the Lactose. How is she not going to know this is in her drawer? Take a look at this. You'll see it, you'll take it back there. How do you not know this old, dirty bottle is in your drawer of stuff? I challenge every woman. I know every single thing in my toiletry drawer. And if it's taking up too much room, it's going right in the garbage. (Emphasis added).
Although not finding that these statements rose to the level warranting reversal of defendant's conviction, we nevertheless admonish the prosecutor that the comments suggesting that, as a woman, Lopez should have known the contents of her dresser drawer because, "I know every single thing in my toiletry drawer," were improper because it appealed to the jury based on stereotypic notions of gender behavior. It also improperly introduced the prosecutor's personal habits as a standard for assessing Lopez' credibility. [Id. at 240.]
Here, the prosecutor's remarks attacking defendant's credibility based on her personal experiences reflect the same problems we criticized in Lopez. As in Lopez, although these comments were not so egregious as to deny defendant of his right to a fair trial, "[w]e do expect, however, that they will not be repeated in any future trial of this or any other case." Ibid.
Finally, the arguments raised in Points VI and VII are clearly without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
© 1992-2008 VersusLaw Inc.