April 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYMOND R. MARTIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, No. 05-06-00501-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 17, 2009
Before Judges Wefing and Yannotti.
Tried to a jury, defendant was convicted of three counts of distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5(b)(3), and one count of resisting arrest, N.J.S.A. 2C:29-2(a), all crimes of the third degree. The trial court sentenced defendant to three years in prison. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant's trial was brief. Detective Christopher Shearer of the Somerset County Prosecutor's Office engaged in three undercover narcotics transactions. The last two transactions took place in the parking lot of Rhythms, a bar and restaurant located in Manville. The final sale was monitored by a number of officers, who were stationed in unmarked vehicles at various nearby points. At the conclusion of that sale, Detective Shearer gave a signal to those officers; he drove off and the remaining officers closed in, identifying themselves as police. Defendant tried to run away but was subdued and arrested after a brief struggle. Detective Shearer identified defendant as the individual who sold narcotics to him and several of the officers involved in arresting defendant also testified.
Defendant raises the following issues for our consideration:
THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO TESTIFY BY FAILING TO SUFFICIENTLY INQUIRE AS TO WHETHER DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHT TO TESTIFY.
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY BY REFUSING TO ALLOW DEFENDANT AN OPPORTUNITY TO CONSULT WITH HIS FAMILY BEFORE DECIDING WHETHER TO WAIVE HIS RIGHT TO TESTIFY.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO AGAIN REQUEST THAT DEFENDANT BE ALLOWED TO TESTIFY ON HIS OWN BEHALF AFTER THE TRIAL COURT HAD PREVIOUSLY CONCLUDED THAT DEFENDANT WAIVED HIS RIGHT TO TESTIFY.
THE ASSISTANT PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT REQUIRING REVERSAL OF DEFENDANT'S CONVICTION DUE TO AN EGREGIOUS COMMENT IN THE STATE'S SUMMATION WHEN THE ASSISTANT PROSECUTOR COMMENTED ABOUT THE DEVASTATION THAT CRACK COCAINE HEAPS ON CRACK USERS, THEIR FAMILIES AND THE COMMUNITY. (Not Raised Below)
THE JUDGE'S CHARGE ON FLIGHT WAS ERRONEOUS BECAUSE IT DID NOT INFORM THE JURY OF THE DEFENDANT'S EXPLANATION FOR HIS FLIGHT. (Not Raised Below)
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL AND ERRONEOUSLY CONCLUDED THAT THE STATE HAD PROVEN EACH OF THE CHARGES BEYOND A REASONABLE DOUBT.
THE THREE-YEAR PRISON TERM IMPOSED ON DEFENDANT'S FIRST INDICTABLE OFFENSES SHOCKS THE JUDICIAL CONSCIENCE. DEFENDANT MUST BE RESENTENCED TO A TERM OF PROBATION.
The first three points all revolve around the same incident. It is necessary to set forth in detail the context in which it occurred. The first day of trial was Thursday, October 25, 2007. The jury, which had been selected the previous day, was sworn in, the attorneys gave their opening statements, and the prosecution presented three witnesses. At the end of the day, the trial court advised the jury that it would be handling other matters on Friday and Monday, and thus testimony resumed on Tuesday, October 30. The prosecution presented four witnesses on Tuesday, two of whom were officers involved in arresting defendant. Another of the witnesses was the manager of Rhythms, who testified that defendant had come into the establishment to see about booking a party. After speaking briefly, he left. The manager heard a disturbance outside and saw defendant being arrested.
At approximately 11:00 a.m., after presenting three witnesses, the assistant prosecutor informed the court that he had one additional witness, a police officer, whom he had instructed to come in at 1:30 p.m. He said he had been unable to reach the officer to have him come earlier when the trial moved more quickly than he had anticipated. The trial court agreed to the brief recess and in that period conferred with counsel on the anticipated charge.
The trial resumed at approximately 1:30 p.m. and the final witness for the State, Patrolman William Federico, who had also participated in the arrest, testified. At the conclusion of his testimony, the State rested. Defendant then made a motion to dismiss; after argument, the trial court denied the motion under State v. Reyes, 50 N.J. 454 (1967). Defendant then called Detective Mark Matthews, also of the Somerset County Prosecutor's Office. At the end of that testimony, defense counsel asked for a brief recess to consult with his client on whether defendant was going to testify. The trial court agreed and recessed for fifteen minutes. When the matter resumed (outside the presence of the jury) it was, according to the transcript, almost 4:00 p.m. Defense counsel said his client wanted to consider overnight whether to testify; the trial court refused that request. Defense counsel inquired whether, if his client elected to testify, he could do so in the morning in light of the time.
Again, the trial court refused this request.
The colloquy between the trial court and defense counsel occupies several pages of transcript, with the trial court becoming more exasperated with what it perceived to be defense counsel's refusal to give a direct answer to the question whether defendant intended to testify. The court reminded defense counsel that it had repeatedly during the trial informed defendant that he would have to come to a decision on whether to testify. The trial court insisted that the decision be made at that juncture and further that defendant testify at that point.
When defense counsel persisted that his client could not make an informed decision then but needed to consider it overnight, the trial court concluded that defendant was not testifying. Defense counsel did agree that the court should instruct the jury that it could draw no inference from defendant's failure to testify. The trial court then called in the jury and dismissed them for the day.
The trial resumed the following day with summations and charge. Defense counsel argued in his summation that defendant was arrested by mistake, stressing the testimony of the Rhythms' manager that defendant had been there talking about booking a party. After several hours of deliberation, the jury found defendant guilty on all counts.
We recognize that the scheduling and control of trial proceedings rests in the sound discretion of the trial court. We further recognize the deference that an appellate court will generally accord to the discretionary determinations of a trial court. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). We also recognize and are sympathetic to the heavy pressures under which trial courts labor.
We are satisfied, nonetheless, that the trial court mistakenly exercised its discretion when it insisted at 4:00 p.m. that defendant could not ponder overnight whether to take the stand. We acknowledge that the trial court did, as it stressed during this colloquy, repeatedly advise defendant during the trial that he would have to make that decision. The shifting dynamics of a trial, however, are one of the important factors a defendant must weigh in reaching his decision on this crucial issue. What may have seemed to be the reasonable decision during the first day of trial may not be in light of testimony given during the second day. We note, in addition, that defendant had no prior indictable convictions and thus did not have to fear that the jury would consider him less credible because of a prior criminal record.
Judicial discretion is not unbounded. State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Judicial discretion must take into account not only applicable legal principles but the particular circumstances of the case. State v. Moretti, 50 N.J. Super. 223, 236 (App. Div. 1958) (citing Hager v. Weber, 7 N.J. 201, 212 (1951)). Further, it must be exercised to achieve a sound objective.
We are unable to perceive what objective the trial court was seeking by persisting in this course, and the trial court did not state its objective, other than its desire to have defendant make his election then. The prosecution did not request that defendant make his decision at that point and voiced no objection to the request for further time. The trial court had already determined earlier in the day that summations and charge would take place the following day. Permitting defendant to return in the morning to announce his decision would thus not delay the trial beyond what had already been anticipated. His testimony, moreover, would have been brief and thus did not pose an unjustifiable risk of delay.
From reading a cold transcript, it would appear that the prosecution had a very strong case. The jury, however, did not come to an immediate decision but deliberated for some period of time. Defense counsel argued in his summation that defendant was only on the scene because he had gone to Rhythms to book a party and that the officers mistook him for someone else. We have reluctantly concluded that the stance taken by the trial court was unreasonable in light of all the circumstances of this case and that it mistakenly exercised its discretion.
Our conclusion in this regard makes moot the remainder of defendant's arguments. We are compelled to note, however, that remarks about the social devastation of drug trafficking do not belong in a prosecutor's summation.
Reversed and remanded for further proceedings.
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