April 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY L. TERRY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1558-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Skillman and Collester.
Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance, namely cocaine, contrary to N.J.S.A. 2C:35-10a. Judge Deborah J. Venezia presided over defendant's trial and on May 18, 2007, sentenced him to a term of five years with a two and one-half year period of parole ineligibility. We affirm.
Shortly after midnight on August 2, 2006, New Brunswick police officers Christopher Bornheimer and Mark Cichowski were on patrol in their marked police car when they were advised of a disturbance in the area of Throop Avenue and Sandford Street.
They received a description of a black man wearing blue jeans, a white tank top and a shirt tied around his neck. Bornheimer and Cichowski drove down Powers Street where they saw a man fitting the description getting out of the back seat of a parked white car. Also in the car were the driver and a front-seat passenger. Bornheimer testified that the officers were about twenty yards away when the man, later identified as defendant, saw the police car and threw a plastic bag to the ground.
As Bornheimer and Cichowski approached, the defendant yelled, "What did this have to do with me, I didn't do anything." Cichowski spoke with the defendant. Bornheimer picked up the discarded plastic bag which contained eleven smaller baggies of a white powdery substance later identified as cocaine. Defendant was then placed under arrest.
Melanie Adams, defendant's girlfriend, testified on defendant's behalf that she was talking to defendant's brother in the backyard of his apartment house facing Powers Street when the police approached the defendant. She said that there were seven or eight people around the car and three or four people on the side of the street where she was standing. She said that when the police car pulled up, the officers got out of the car and arrested the defendant for no reason.
Following his conviction and sentence defendant appeals and sets forth the following arguments:
THE PROSECUTOR'S QUESTIONING OF MELANIE ADAMS AND HIS COMMENTS IN SUMMATION CONCERNING WHY SHE DID NOT COME FORWARD EARLIER EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA; CONSEQUENTLY DEFENDANT'S CONVICTIONS MUST BE REVERSED. (Not Raised Below.)
THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS.
U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ¶10. (Not Raised Below.)
A. THE PROSECUTOR "TESTIFIED" IN SUMMATION.
B. THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF HIS WITNESSES.
C. THE PROSECUTOR DENIGRATED THE DEFENSE.
Defendant's initial argument focuses on the cross- examination of Adams about her failure to give a statement prior to trial as to what she saw that night. On cross-examination she admitted she was defendant's girlfriend, and the questioning continued as follows:
Q: Now, you stated that you speak to him daily?
Q: You see him frequently?
Q: You spoke to him yesterday?
Q: That would be last evening, correct?
Q: You knew his trial was going on yesterday as well?
Q: Now, prior to today, you'd never given a statement to anyone. Is that correct?
Q: A statement to Mr. Goodman?
Q: A statement to an investigator for Mr. Goodman's office?
Q: No police officers?
Q: And its been since last August you knew he was charged with drug offenses, meaning Mr. Terry, and at some point would be facing trial. Correct?
Q: So you had an opportunity during that conversation to discuss what had gone on in the trial. Correct?
A: Yes, I had the opportunity, yes.
Q: Is it fair to say you discussed the trial and how things were going, correct?
During his summation, the prosecutor attacked Adams's credibility as biased in favor of defendant.
Who has the motive to come in here if their boyfriend got in trouble and to deceive you? And if what she's telling you is the truth, why didn't anybody, anybody hear about it until today? No statement to the police, no statement to Mr. Goodman, no statement to somebody in his office, no statement to anybody.
No objection was made to the prosecutor's cross-examination of Adams or to the prosecutor's comments in summation. Defendant argues that the cross-examination of Adams's exculpatory version of the events on August 2, 2006, and the prosecutor's summation comments constituted plain error requiring reversal under State v. Silva, 131 N.J. 438 (1993).
Our heightened standard of review under the plain error standard requires a showing that the trial error affected defendant's substantial rights so as to cause a manifest denial of justice. R. 2:10-2; State v. Chew (I), 150 N.J. 30, 82 (1997).
In Silva, our Supreme Court held that when it would not be natural or normal for a witness to offer exculpatory evidence to law enforcement officers, the witness's silence is not admissible on cross-examination. However, the court also stated that if, at a hearing outside the jury's presence, the trial judge determines the witness' pre-trial silence could be fairly construed as inconsistent with the direct testimony, cross- examination is admissible as an inconsistent statement. Id. at 447. Defendant argues that under Silva a witness can be impeached by prior silence only if, at an in limine hearing, a proper foundation has been established by showing the witness was aware of the charges, had reason to know of exculpatory information, had a reasonable motive to exonerate the defendant, and was familiar with the means to make the information available to law enforcement. Silva, supra, 131 N.J. at 447-48.
We find in these circumstances that the absence of an in limine hearing does not constitute plain error. The cross- examination of Adams conclusively showed that the foundation could have been established. She knew of the pending charges and allegedly had exculpatory information. As defendant's girlfriend, she had a motive to exonerate him. She also had the means to disclose the exculpatory information to law enforcement directly or by advising defendant's attorney prior to trial.
In reviewing the prosecutor's summation, we find that some of his comments were objectionable. He referred to the police witnesses as "sworn law enforcement officials" and said that their testimony of observing defendant discard a plastic bag "was consistent because that's the truth and that's what happened." Later, he said:
Who is more likely to not be telling you the truth? Do you think the officers are getting some vacation in Hawaii or bonus points because of an arrest? They're out there doing their job. Who has a motive to come in here if their boyfriend got in trouble and to deceive you?
Who is trying to trip up the witnesses? Who is trying to deceive you? Who is trying to confuse people who are telling a story? This picture has absolutely nothing to do with the night in question. Nothing.
So who has an intent to deceive you, the officers who came in and just told you what they had to do because it's part of their jobs or a picture that has nothing to do with the night in question?
A prosecutor must refrain from personally vouching for the credibility of the State's witness. State v. Marshall, 123 N.J. 1, 154 (1991); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). While the cited comments by the trial prosecutor were improper, we do not find them so egregious in this case to constitute plain error or deprive defendant of a fair trial. See State v. Timmendequas, 161 N.J. 515, 575 (1999).
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