January 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MALIK MONROE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0588.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Fisher and Baxter.
In this appeal, we consider among other things whether defendant's right to a fair trial was violated by the prosecutor's arguments to the jury--in contravention of our holding in State v. Holmes, 255 N.J. Super. 248, 252 (App. Div. 1992), which condemned a similar "call to arms"--that illegal drugs are "a scourge on our society." Because this departure from the proper bounds of advocacy did not prejudice defendant, we affirm.
Defendant was indicted along with two others. Those counts in the indictment directed at defendant are the following: second-degree conspiracy to distribute controlled dangerous substances (CDS) (count one), N.J.S.A. 2C:5-2; third-degree possession of CDS (counts two and four), N.J.S.A. 2C:35-10(a)(1); second-degree possession with the intent to distribute CDS (count three), N.J.S.A. 2C:35-5(b)(2); third-degree possession of CDS with the intent to distribute (counts five and seven), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-35-5(b)(3); third-degree possession of CDS with the intent to distribute on school property (counts six, eight and eleven), N.J.S.A. 2C:35-7; and third-degree possession of CDS with the intent to distribute (count ten), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11).
At trial, the jury heard testimony of police officers who described the sale of CDS by defendant and others on September 8, 2005 in Irvington. On that date, police watched as defendant approached a tan Toyota and reached into the car to take from the driver money, which he placed in his pocket. Defendant then signaled "with his hand like telling him'two,'" prompting co-defendant Taylor to walk into the nearby residence at 267 Ellis Avenue. Taylor quickly reappeared and walked back to the vehicle, looked around, pulled something from his pocket, and handed it to the driver, who then drove away. The observing officer radioed backup police vehicles, which were unable to locate the Toyota to confirm the suspicion that defendant had engaged in a drug transaction with the occupants of the Toyota.
A similar event soon followed. This time, a small white pickup truck approached and parked nearby. Co-defendant Vernell Scruggs, a passenger, exited the truck, approached defendant and handed him money. Defendant again signaled "two" with his fingers; co-defendant Washington entered 267 Ellis Avenue, quickly exited, approached the truck and handed Scruggs two items. The truck then departed. Following this event, the truck was stopped and defendant Scruggs was found holding two packets of heroin, which bore the words "BLACK JACK" in red ink. Defendant, Taylor and Washington were detained and officers also searched 267 Ellis Avenue, where they found a large shoe box containing 149 packets of heroin stamped with the words "BLACK JACK" in red ink, as well as other CDS. A search of defendant uncovered $587 in cash.
The only defense witness was defendant's girlfriend, who testified that two days earlier she had given defendant $600 to be used as a deposit on an apartment they planned on renting.
At the conclusion of the two-day trial, defendant was convicted of the offenses charged in count one and counts four through eight; he was acquitted of the other charged offenses.
Later, the trial judge granted the State's motion for the imposition of a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). After all appropriate mergers, defendant was sentenced to a seven-year prison term, with a three-year period of parole ineligibility on count six, and a concurrent seven-year prison term on count eight, which was ordered to run concurrently with the sentence on count six.
Defendant appealed. He has argued that he was denied the right to due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Paragraph 1 of the New Jersey Constitution, claiming specifically:
I. THE PROSECUTOR'S RELIANCE ON THE DEVASTATING EFFECTS OF DRUGS ON SOCIETY TO PERSUADE THE JURY TO CONVICT THE DEFENDANT
(Not Raised Below).
II. THE CONFUSING, AMBIGUOUS, AND UNINTELLIGIBLE INSTRUCTION ON THE LAW OF CONSPIRACY AND THE SUBSTANTIVE CRIMES
(Not Raised Below).
III. THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ON ALL THE ESSENTIAL ELEMENTS OF THE CRIMES
(Not Raised Below).
IV. THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED
(Not Raised Below).
V. THE STATE'S FAILURE TO SHOW THAT ITS WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS
(Not Raised Below).
VI. THE ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE
(Not Raised Below).
In his Point VII, defendant has argued that his sentence was excessive because
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE COURT IMPROPERLY IMPOSED MULTIPLE EXTENDED TERMS.
C. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
D. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
After the matter was calendared, we granted defendant's motion for leave to file a supplemental brief, which raised the following issue:
THE DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 9 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO CONDUCT A VOIR DIRE AFTER JURORS REPORTED DURING DELIBERATIONS THAT ONE OF THE JURORS WAS NOT CAPABLE OF UNDERSTANDING THE COURT PROCEEDINGS.
The State was also permitted to file a response to the supplemental brief, which we have received and considered.
With the exception of Point I, which we reject for reasons fully discussed hereafter, we find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In his Point I, defendant argues that his right to a fair trial was breached by the prosecutor's departure from our holding in Holmes during his opening and closing statements to the jury. In Holmes, we held that a prosecutor's references to the "war on drugs" and "[t]he particular drug problem we have in this country, particularly in Newark," which went uncorrected by the trial court, were "so inflammatory as to constitute plain error." Holmes, supra, 255 N.J. Super. at 251. As Judge Antell explained in his opinion for the court, these comments to the jurors "were nothing less than a call to arms which could only have intended to promote a sense of partisanship incompatible with their duties," and that it was "the jury's function, not to enlist in the war on drugs, but to listen to the evidence and decide in a dispassionate way the question of defendant's guilt." Id. at 251-52.
Here, during his opening statement, the prosecutor discussed the effect of illegal drugs on society:
Ladies and gentlemen, I don't have to tell you this, you should all know that drugs are illegal, illegal to buy. They're illegal to sell and they're illegal to possess. And drugs are slowly destroying our society, the use of drugs, the sale of drugs, destroying our inner cities, destroying our suburbs. They're eating away at our society. [Emphasis added.]
The prosecutor reprised this theme in his summation:
I already told you, ladies and gentlemen, drugs are illegal. You all know that. I know that. I'm not going to run around the courtroom screaming, yelling how they're illegal. I'm not going to run around the courtroom telling you what a scourge it is on our society. You all know that. You all know the problems we face today with narcotics. It is a problem.
And these officers are doing their job trying to get the narcotics off the street.
Defense counsel wants you to believe that cops are over-zealous. They just arrest anyone. They don't care. But in this case, they're not, and they've told you they're not over-zealous. [Emphasis added.]
Defense counsel did not object when these statements were made. Now, on appeal, defendant argues that the prosecutor's references to the effect of illegal drugs on our society constitute plain error and warrant the ordering of a new trial. In these circumstances, we disagree.
The difference between Holmes and the case at hand is the fact that the prosecutor's "call to arms" here promoted defendant's contention that the police wrongfully arrested him in their zeal to arrest drug dealers. After the prosecutor completed his opening statement, defense counsel made this argument to the jury:
[The prosecutor] is right. Drugs are eating away at our society. And in their zeal, in their excitement to take drug dealers off the streets of our county and our state they made a mistake. They made a mistake that's compounded by lies and more errors and more omissions.
Now, in their zeal, in their excitement, and I'm going to use a big word, to interdict the drug trade--interdict means to stop, halt, put an end to it, this scourge on our society, in particular in towns like Newark, Irvington, East Orange, where we drive around and we see this every day. I don't necessarily blame the police department nor does [defendant]. He got caught up in it and that's what the facts of this case are going to show. [Emphasis added.]
And, in his summation, defense counsel repeated this theme in addressing the reliability of the State's witnesses:
That leaves you with a doubt about the veracity of what happened. Leaves you with a doubt about whether or not in their zeal, in their excitement, to overcome the drug problem in our society that [the prosecutor] so gracefully brought up in his opening statement. Because it is a scourge on our society. I have no doubt about that.
But that doesn't mean that innocent people aren't picked up sometimes when the police are over-excited about taking these drugs off our streets. [Emphasis added.]
As a comparison of the arguments made by the prosecutor and defense counsel reveal, defendant made a tactical decision to use the prosecutor's "call to arms" to his advantage by suggesting police over-zealousness led to his being wrongfully charged. Although we continue to adhere to Holmes's sound principles, see also State v. Neal, 361 N.J. Super. 522, 537-38 (App. Div. 2003); State v. Morais, 359 N.J. Super. 123, 132-33 (App. Div.), certif. denied, 177 N.J. 572 (2003); State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000); State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994), we conclude that defendant was not prejudiced in this particular circumstance because he willingly made the same argument to the jury about the societal problem of illegal drugs in urging his own innocence. Accord State v. Knight, 63 N.J. 187, 193-94 (1973) (holding that "[w]ithin reasonable limitations," a prosecutor "should be permitted to emphasize the serious social consequences of narcotics," and that reversal was not warranted because the prosecutor's comments represented "only a small portion of a summation which was largely devoted to a fair review of the evidence").
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