June 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COURTNEY B. JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-05-0298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2009
Before Judges Axelrad and Messano.
Defendant Courtney B. Jackson appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); second-degree possession of a firearm while possessing cocaine with intent to distribute, N.J.S.A. 2C:39-4.1(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and fourth-degree obstructing, N.J.S.A. 2C:29-1(a). He was sentenced to six years in prison on the possession with intent to distribute charge, and eight-years consecutively on the possession of a firearm while possessing cocaine with intent to distribute. Sentences imposed on the remaining counts, and on a separate accusation to which defendant pled guilty, were ordered to run concurrently. The appropriate financial penalties were also imposed.
Defendant raises the following arguments for our consideration:
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHTS TO A FAIR TRIAL, THEREFORE DEFENDANT'S CONVICTION MUST BE REVERSED. (NOT RAISED BELOW)
THE VERDICT ON COUNT I WAS AGAINST THE WEIGHT OF THE EVIDENCE AS NOTHING WAS ADDUCED TO SUPPORT THE REQUISITE MENTAL ELEMENT. (NOT RAISED BELOW)
DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF [THE] TRIAL COURT['S] DISCRETION. (NOT RAISED BELOW)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
On April 23, 2004, members of the Somerset County Prosecutor's Office Organized Crime and Narcotics Task Force gathered in the parking lot of the Somerville train station, preparing to proceed to a surveillance location. At about 7:00 p.m., members of the team took note of defendant, who they observed walking on South Bridge Street. Defendant stopped in front of a driveway at 93 South Bridge Street, looked up the driveway, threw his hands up, and shook his head when he saw no one there. Defendant then made a call on his cell phone.
Shortly thereafter, the officers observed an SUV arrive and pull into the driveway. Its occupant exited and walked to the front door of the premises, checking the mailbox outside as he did. He opened the front door of the house, and defendant turned from the direction he was walking and met the man in the front doorway. The officers saw defendant accept a plastic bag from the man in exchange for something which the officers could not identify. The man exited the doorway and returned to the SUV, leaving the scene. Defendant walked away.
The officers trailed defendant in two vehicles. At some point, defendant made eye contact with one of the officers, turned, and started walking in another direction. When the officers turned their cars around to follow him, defendant fled. As he ran in the direction of the train station, the officers converged upon him, tackled him, and observed a magazine of ammunition protruding from his pocket. They found a.45 caliber handgun tucked in the waistband of his pants, and, during a more extensive search of his person, a plastic bag containing white powder, later identified as approximately twenty grams of cocaine.
In Point I, defendant argues the prosecutor committed misconduct by making the following comments in his opening statement:
As an Assistant Prosecutor, my obligation is to represent the State of New Jersey or in other words the laws of the State of New Jersey.
This case deals with a major social problem that is infesting our streets. It deals with narcotics trafficking, narcotics violations.... You are going to learn and hear and see from trained narcotics professionals, experts in their field, people that do this day in and day out, that are on the front lines in this battle on the war on drugs.
There was no objection to the comments. In fact, during his opening statement, defense counsel told the jurors,
Forgetting all the legalese, I think [the prosecutor] has said it right. We want you to listen to things and do justice. Yes, we are involved in a war on drugs. Drugs, guns, all these things create very bad images in our minds.
However, during the charge conference the next day before summations, the judge, sua sponte, told the prosecutor,
We are perilously close to what the jurors should not hear. From the State there was a statement that you represented the State of New Jersey  and then you said you represented the laws of the State of New Jersey. I just as soon that phrase not be in [your summation].
I may be conservative in my interpretation of the case law on which the dos and don'ts are based. The other thing was offenses of this nature being a social problem. I don't think that, in and of itself, crosses the line, but I just want to make sure that we are on the same page that you are not going to tell the jury that it is their job to protect the community against this social problem.
The judge decided against giving any curative instruction, and defense counsel did not ask for one. With that admonition, the prosecutor did not repeat the comments in any fashion during summation, and there were no objections from defense counsel.
Defendant argues that these two brief comments, to which there was no objection, amount to prosecutorial misconduct that denied him a fair trial. We disagree.
"[P]rosecutors occupy a unique position in the criminal justice system and  their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).
"A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996) (quotations omitted).
"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84.
Defendant likens the prosecutors' first comment--that he "represented the State of New Jersey" and "the laws of the State of New Jersey"--to the comments that required reversal in Negron. We need not dwell extensively on the differences between the prosecutor's opening statement in that case, and the stray comment the prosecutor made in this case.*fn1 It suffices to say that the level and extent of the prosecutor's egregious conduct in that case far exceeds what the prosecutor said in this case. We find no reason to conclude this brief comment amounted to reversible misconduct.
Turning to the second statement, defendant argues the prosecutor's references to "a major social problem" and "the war on drugs," are equivalent to the prosecutorial comments in State v. Holmes, 255 N.J. Super. 248 (App. Div. 1992), that required our reversal. There, in opening, the prosecutor stated
Who has the interest, who has motive, who would come before you and lie? That will probably be what you will have to decide and I ask that you observe the witnesses as they testify for you and use your common sense. You all understand the particular drug problem that we have in this country, particularly Newark and I submit to you, that the police officers don't have to make up facts. [Holmes, supra, 255 N.J. Super. at 249 (emphasis added in original).]
Despite a timely objection, the judge did not strike the comment or give a curative instruction. Ibid. In summation, the prosecutor repeated the comment, once again invoking the "war on drugs" as a reason why the police officers were credible witnesses. Id. at 249-50.
While we believe the prosecutor's comment in this case was improper and should not be repeated in the future, we do not conclude that it requires reversal of defendant's conviction. First, unlike the situation in Holmes, there was no objection from defendant. In fact, as noted, defense counsel repeated the "war on drugs" phrase in his opening.*fn2 Second, unlike Holmes, the comments were made only during the prosecutor's opening statement, before the jury had a chance to hear the testimony and consider the substantial evidence of defendant's guilt that was subsequently adduced. They were not repeated again in summation, the trial's equivalent of a persuasive last word in an argument. Third, although he came close to the sentiment, the prosecutor did not use the "war on drugs" as a reason why the police witnesses were inherently more credible, as did the prosecutor in Holmes.
In sum, "[w]hen all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007). We find no basis for reversal.
We decline the opportunity to consider defendant's second point. No motion for a new trial based upon the sufficiency of the evidence was ever made below. R. 3:20-1. As such, the argument is not cognizable on appeal. R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972). Moreover, the contention is without sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2). As we have already noted, the evidence of defendant's guilt as to all counts was overwhelming.
In his third point, defendant contends the judge improperly found certain aggravating factors, gave them too much weight, and imposed a sentence that was "extreme." We disagree.
The sentencing judge found, as aggravating factors, the likelihood that defendant would commit another offense; the extent and nature of defendant's prior record; the need to deter defendant and others from violating the law; and that the imposition of a fine or probation would be looked upon as the cost of defendant conducting his drug trafficking business. N.J.S.A. 2C:44-1(a)(3), (6), (9) and (11). She also found, as a mitigating factor, defendant's conduct was somewhat excused by his pervasive drug addiction. N.J.S.A. 2C:44-1(b)(4). She noted defendant's prior juvenile adjudications for theft and criminal mischief, his prior narcotics conviction as an adult, which had resulted originally in PTI, but later a probationary sentence, when defendant failed the program. While awaiting trial on these charges, defendant jumped bail, and was arrested in Pennsylvania. The bail jumping charge resulted in the accusation to which defendant pled guilty. The judge also took note of defendant's drug addiction, since he admitted to smoking marijuana since age nineteen, and snorting cocaine since age twenty-one. The judge concluded the aggravating factors outweighed the one mitigating factor, and imposed the sentences we referenced above.
Defendant concedes that a mandatory consecutive term was required on the conviction for possession of a handgun during a drug offense. N.J.S.A. 2C:39-4.1(d). He contends, however, that his criminal record was scant, and the judge should not have imposed an eight-year sentence on that charge because it was greater than the midpoint of the sentencing range for a second-degree offense. He makes no specific objection to any other aspect of the sentence, nor could he, since the judge imposed a six-year sentence for the second-degree possession with intent charge, and imposed concurrent sentences for the other offenses.
Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and... a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
We have carefully considered defendant's argument in light of the serious nature of these offenses and his prior record. We find no mistaken exercise of the sentencing judge's broad discretion in imposing the sentence she did.