March 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEXTER COHEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-02-0274, 06-02-0275, 06-02-0276 and 06-02-0277.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 29, 2009
Before Judges Axelrad and Parrillo.
Defendant Dexter Cohen was convicted by a jury of the lesser-included offense of petty disorderly persons harassment, N.J.S.A. 2C:33-4 (count one), and two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a (counts three and four) in connection with incidents involving his estranged wife, Patricia Gilmore. He was acquitted of third-degree terroristic threats under count one, and fourth-degree criminal trespass, as amended by the court from third-degree burglary, under count two.*fn1
Defendant asserts the following arguments on appeal:
REPEATED REFERENCES TO MS. GILMORE AS "THE VICTIM" BY THE TRIAL COURT DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE THEY HAD THE CAPACITY TO BE VIEWED BY THE JURY AS A JUDICIAL ENDORSEMENT OF THE STATE'S CASE (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED PLAIN ERROR BY PROVIDING THE JURY WITH INCOMPLETE AND CONFUSING LEGAL INSTRUCTIONS (NOT RAISED BELOW).
THE JURY INSTRUCTIONS WERE INCOMPLETE BECAUSE OF THE ABSENCE OF A KOCIOLEK CHARGE (NOT RAISED BELOW).
IN ITS EFFORT TO PREVENT THE JURY FROM DRAWING IMPROPER INFERENCES CONCERNING AN UNCHARGED BAD ACT OF THE DEFENDANT, THE TRIAL COURT'S JURY INSTRUCTIONS WERE INCOMPREHENSIBLE (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNTS ONE, THREE, AND FOUR CHARGING TERRORISTIC THREAT[S].
We have considered defendant's arguments in light of the record and applicable legal standards, and affirm.
At trial, Gilmore testified about incidents that occurred on September 4, September 7, and September l5, 2005. On September 4, she was sitting on the porch of her house at 32 Georgia King Village in Newark with her two daughters when defendant, her estranged husband, walked by and said to her, "no marriage, no life." Gilmore was scared and feared for her life. She called security, but defendant was gone by the time the guards arrived.
On September 7, 2005, Gilmore was home with one of her daughters and two grandchildren. The door was unlocked. She relayed that she heard the door open, left the kitchen to look down the stairwell, and saw the back of defendant as he was leaving the house through the front door. Her daughter Nicole noticed her cell phone was missing from the house and when Nicole dialed it, she informed Gilmore that defendant answered.
On September 15, 2005, Gilmore was sitting on her porch with her two daughters. Defendant walked by and repeated the comment to her, "no marriage, no life," this time gesturing with his index finger and thumb in the image of a gun. Gilmore went into her house and called security. About fifteen minutes later, she went to the grocery store. As she left the store, she noticed defendant standing on the corner across the street. Security guards detained defendant. The police arrived and defendant was handcuffed and arrested. According to Gilmore, defendant said "he was going to get [her]" in the presence of the security officers and made similar comments as he was being placed in the patrol car, which caused her to fear for her life.
Timothy Holmes, the security guard, corroborated that he heard defendant say to Gilmore, "When I get out, I'm going to get you and you should not be living here on [the] ground[s] of Georgia King Village." He also testified that defendant continued making threats to Gilmore when the police arrived and placed defendant in the patrol car.
The court denied defendant's motion for a judgment of acquittal at the end of the State's case. Defendant presented no testimony on his behalf. Pertinent to this appeal, defendant was convicted of the lesser-included offense of harassment on September 4, 2007, and two counts of terroristic threats on September l5, 2007.
Defendant's first challenge is that the trial court's repeated references to Gilmore as "the victim" undermined the integrity of the trial and amounted to a judicial endorsement of the State's case, thereby constituting plain error. According to defendant, the nature of the crimes alleged in the indictment required the jury to determine whether a crime had, in fact, been perpetuated. Defendant contends that Gilmore could properly be termed "the victim" only after the conclusive determination by the jury that defendant committed an act or acts of terroristic threat or harassment and/or burglary or criminal trespass. Thus, defendant urges, despite the court's model jury instructions, the court's repeated characterizations had a clear capacity to influence the verdict and produce an unjust result.
We disagree. The trial judge possesses broad discretion with regard to participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). In analyzing defendant's position that there was plain error, R. 2:10-2, we must view the court's comments in the context of the entire trial record.
The court referenced Gilmore as "the victim" in explaining the counts of the indictment and once when it admonished defense counsel not to stray from the evidence during his summation. In its preliminary remarks to the jury the court stated:
(BY THE COURT) Now, I have read to you the counts of the indictment and basically it is the state's contention that on the 4th of September, and twice on the l5th of September, 2005, on two separate occasions on that date, that the defendant came to the victim's home at 32 Georgia King Village and verbally threatened her.
So that is the basis of three of the counts of the indictment. The contention is that he did so on the 4th of September, 2005 and on two separate occasions on the l5th of September, 2005. It is also the state's contention that on September 7th, 2005 the defendant entered the victim's home at 32 Georgia King Village without the permission of the victim with the purpose of committing an offense while on the premises. This is the factual contention that the state claims supports the charge of burglary.
Now, finally the state contends that the victim, and the defendant, the victim is Patricia Gilmore, and the defendant, are married and were married at the time of the commission of these offenses but at that time they were not living together. These are the state's contentions. [Emphasis added.]
The court repeated the term when it interrupted and admonished defense counsel during summation, after he disregarded a prior warning to limit his remarks to the evidence:
THE COURT: [Defense counsel,] you must stick with the evidence that's on the record. Now, I'll allow some liberties, but you are beyond that now.
DEFENSE COUNSEL: Can you imagine not being able to have your point of view taken into consideration? What did this man say? The young lady, first of all, she's no young lady. The young lady, he feels like he is what? He's fulfilling some duty of his. He didn't arrest him. He [the security guard] brings him [defendant] back here and he characterizes this young lady and he said some dispute. He doesn't tell us what the dispute is. Why wasn't she placed in custody? Because she lived there. Because they are, I submit to you --
THE COURT: [Defense counsel,] there are no charges against the victim, and you are not to comment on that possibility. You are here to try the charges in the indictment that's before this jury. [Emphasis added.]
Finally, in its charge to the jury, the court stated:
Now, on the first count this offense charges the commission of a terroristic threat on the fourth of September the year 2005 in the City of Newark.
And the Court's recollection of the statement on this date attributed to the defendant said to the victim was, "No marriage, no life." And just to draw your attention to the place we're talking about, it is my recollection that the statements had -- were alleged to have been made to the victim while she was on the porch of the home. . . .
So this is September 4th, 2005, "No marriage, no life," is the statement that is alleged to have been made while the victim was seated on her porch at her home.
The Third Count, September l5th, 2005, there were two on the l5th. The first was the subject of the Third Count, again the statement attributed to the defendant, "No marriage, no life, and again the victim testified, as I recall, that she was again seated on her porch . . . .
The Fourth Count, same date, September l5th, 2005. Statements -- two statements I believe the victim herself testified that at some point on this day the defendant said to her, "I'm going to get you." At a later point in time, and this would have been when the security guards were present, same date, near the grocery store, "When I get out of jail, I'm going to get you, you better not be living at Georgia King Village," words to that effect.
If you need to hear the precise words, let me know that while you are deliberating.
We'll be glad to read them back to you. I'm not attempting at this point to give you the precise language. . . .
You may remember that at some point during the testimony concerning the charge on the l5th of September there was some testimony from the victim . . . .
Not only did defense counsel not object to the court's use of the term "victim" in these instances, but defense counsel himself referred to Gilmore in his opening statement as "the alleged victim." Moreover, the judge's comment during the defense summation was made shortly after defense counsel stated, "We know this victim says she's going to the store." Thus during the entire tenor of the trial there was no question that Gilmore was on the receiving end of some conduct by defendant; the defense essentially was that her complaints were exaggerated as to number and degree. Defense counsel used as a springboard the notion that if there were some actions by defendant on September 4 that placed Gilmore in fear, she would not likely leave her door open three days later; if she were threatened by defendant on September l5 at her house, she would not have walked over to the grocery store. He further claimed that defendant's comments while detained by the security guards and police were said out of anger and frustration at the situation, and were not intended to threaten or annoy Gilmore.
In hindsight, it would have been preferable for the court to have referred to Gilmore in all instances by her name or as "defendant's estranged wife" rather than using the generic term "victim" scattered throughout its comments. However, we are not convinced on this record that the court's use of this term could have been viewed by a rational juror to endorse the credibility of Gilmore and the veracity of the State's proofs, and thereby interfere with the integrity of the jury process. We additionally note that almost all of the comments in the jury instructions that defendant now finds objectionable were prefaced by "it is the state's contention," "the state contends," "the statement attributed to defendant," or "the statement that is alleged to have been made," thus indicating an impartial recitation of the counts of the indictment and evidence presented. Furthermore, the court never crossed the line separating the neutral demeanor of an unbiased judge from a judge who becomes an advocate for one of the parties. It never questioned Gilmore in a manner that showed favoritism towards the State's position, commented on the evidence in a way that implied sympathy or partiality toward the witness, or suggested the defense case was weak or not credible. See State v. Swint, 328 N.J. Super. 236, 259-60 (App. Div. 2000).
Moreover, it is apparent from the verdict the jury afforded defendant the presumption of innocence, and regarded itself as the sole finder of fact, assessor of credibility and arbiter of guilt. The jury was not convinced beyond a reasonable doubt that defendant committed terroristic threats against Gilmore on September 4, but only the lesser-included offense of petty disorderly persons harassment. Nor was it convinced there was sufficient evidence regarding the September 7 incident, and acquitted defendant of the amended charge of criminal trespass of Gilmore's residence. However, the jury apparently was convinced defendant's repetition of the harassing statement, "no marriage, no life," had escalated to a terroristic threat when it was coupled with a gun gesture on September l5, and defendant's subsequent outbursts, as testified to by Gilmore and the security guard, were not just frustrated comments, but rather, constituted a terroristic threat to Gilmore.
Defendant next urges us to find that the trial court committed plain error by failing to give a Kociolek charge. State v. Kociolek, 23 N.J. 400 (1957). The Kociolek charge pertains to the reliability of an inculpatory statement made by the defendant to any witness. Id. at 421-23. As explained in Kociolek, the jury should be instructed to "'receive, weigh and consider such evidence with caution,' in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Id. at 421. According to defendant, the failure to give the charge was plain error because the jury had inadequate guidance on how to assess defendant's statements, which constituted the entirety of the State's proofs, thereby potentially leading it to reach a result it otherwise would not have reached.
We are not persuaded by defendant's argument. Although the Court has directed the Kociolek charge to be given whether or not specifically requested, it has determined the failure to give such charge is not reversible per se. State v. Jordan, 147 N.J. 409, 428 (1997). We have held that "[w]here such a charge has not been given, its absence must be viewed within the factual context of the case and the charge as a whole to determine whether its omission was capable of producing an unjust result." State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. l997), certif. denied, 153 N.J. 215 (1998). Here, the statements were heard directly by the victim and the security guard. Defendant presented no evidence challenging the reliability of the statements, and the sole issue for the jury's determination was the credibility of the witnesses' testimony. We are convinced the court's general credibility instruction sufficiently explained to the jury how to assess the credibility of the witnesses' testimony regarding defendant's purported statements to Gilmore. The instruction charged the jury on the need to consider possible witness bias, motive to lie, interest in the outcome, whether the witnesses' testimony was supported or discredited by other evidence, and whether the witness willfully or knowingly testified falsely to material facts with an intent to deceive. Implicit in the general credibility instruction was the understanding that the jury could disbelieve the witnesses' testimony about defendant's statements. We can assume the jury complied with its obligation to follow the court's instructions because it found defendant not guilty of both terroristic threats under count one and criminal trespass under count two. See State v. Manley, 54 N.J. 259, 270-71 (1969). The court's charge, when read as a whole and viewed in light of the evidence and plain error standard, did not undermine the outcome of the trial and was not capable of producing an unjust result. Jordan, supra, 147 N.J. at 422.
We are also satisfied the court properly instructed the jury during the final charge to disregard defendant's alleged threat to the victim through a third party at the supermarket that was elicited by defense counsel on cross-examination. It is clear from the charge the court did not permit the jury to consider the third-party threat for any reason, and defendant's suggestion that the jury was permitted to consider it as an uncharged prior bad act in violation of N.J.R.E. 404(b) is completely belied by the record. The charge, in its entirety, was not misleading, confusing or prejudicially ambiguous, and properly focused the jury's attention on the evidence supporting the charges. State v. Freeman, 64 N.J. 66, 69 (1973).
In his last challenge to the convictions, defendant contends the trial court erred in denying his motion for judgment of acquittal at the end of the State's case on counts one, three and four. We disagree. In deciding a motion for a judgment of acquittal, the trial judge must review the sufficiency of the evidence and determine whether the evidence is sufficient to warrant a conviction. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. l974), certif. denied, 67 N.J. 72 (1975). The trial judge must determine whether the State has presented sufficient evidence, viewed in its entirety, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, to enable a jury to find the essential elements of the offense beyond a reasonable doubt. R. 3:18-1; State v. Martin, 119 N.J. 2, 8 (1990); Reyes, supra, 50 N.J. at 458-59. Here, Gilmore and the security guard provided sufficient evidence from which a rational jury could find defendant made terroristic threats to Gilmore on September 4 and l5, 2007.
Accordingly, the court properly denied the motion.