July 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAUN STUKES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 05-10-2240-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 16, 2009
Before Judges Axelrad and Winkelstein.
An Atlantic County grand jury indicted defendant on October 20, 2005, charging him with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b (count one); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count two). Prior to trial, defendant stipulated that he had been convicted of a predicate offense under count two of the indictment. Consequently, the trial court dismissed count one and defendant was tried only as to count two.
On September 13, 2006, the jury convicted defendant of that charge. The court granted the State's motion for an extended term, finding that defendant was eligible as a persistent offender, N.J.S.A. 2C:44-3a, and imposed a fourteen-year prison term, with a seven-year period of parole ineligibility.
On appeal, defendant raises two arguments:
THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION WHEN HE IMPROPERLY COMMENTED ON MR. STUKES' DECISION NOT TO TESTIFY, BOLSTERED THE STATE'S CRITICAL WITNESS'S TESTIMONY AND IMPUGNED MR. STUKES' DEFENSE. MOREOVER, THE JUDGE FAILED TO GIVE THE JURY A CURATIVE INSTRUCTION. U.S. CONST. AMEND XIV; N.J. CONST. ART. 1, ¶ 10.
IMPOSITION OF A 14-YEAR EXTENDED TERM, WITH 7-YEAR PAROLE INELIGIBILITY, WAS NOT JUSTIFIED BY A PROPER BALANCING OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS, AND RESULTED IN A SENTENCE SO MANIFESTLY EXCESSIVE AS TO COMPEL THIS COURT TO REDUCE DEFENDANT'S SENTENCE OR REMAND TO THE TRIAL COURT FOR RESENTENCING.
We reject defendant's arguments and affirm.
The incident that led to defendant's conviction occurred on September 5, 2005, in Atlantic City. In a 9-1-1 call, Tamara Barley reported that she was having an argument with defendant, her boyfriend; during the argument, defendant pushed her. At trial, Barley testified that defendant did not have a gun.
Atlantic City police officers Michael Tracy and Craig Argus responded to her call. As Tracy approached defendant, the officer identified himself, and told defendant that he wanted to speak to him. Defendant responded that he did not do anything wrong and fled from the officer.
As Tracy pursued defendant, telling him: "stop, police," Tracy focused his attention on defendant's hands because defendant kept reaching toward his waistband, as if he was holding something. During the chase, Tracy saw defendant throw a black handgun behind a bush. The officer left the gun on the ground and caught defendant about three-quarters of a block away. Tracy subsequently found an operable 9mm semi-automatic pistol in the bushes that he believed was the gun defendant had discarded.
Defendant's arguments on appeal are that the prosecutor: improperly commented on defendant's decision not to testify; bolstered the State's witness's testimony; and impugned the defense. Defendant further submits that the court failed to give an appropriate curative instruction. Because defendant did not object to the comments in question at the time they were made, we address defendant's argument on the basis of plain error. R. 2:10-2. In other words, we will disregard the error unless it is of such a nature as to have been clearly capable of producing an unjust result. Ibid.; see also State v. Macon, 57 N.J. 325, 337 (1971).
Defendant objects to the prosecutor's following remarks, in which he was referring to Officer Tracy's testimony:
Nothing that you heard on direct examination and cross-examination I suggest to you indicates anything other than what Officer Tracy reported on September 5, 2005. Who had the motive to run? He did. Who reached into his waistband? He did. Was Officer Tracy looking at his waistband for nothing?
Do you think Officer Tracy was running behind him and saying, oh, my God, he's pulling up his pants, they're falling down?
Do you think he just stopped there and then just assumed that he dropped the gun? His eyes were focused on the front of [defendant's] waistband where he was reaching because [Officer Tracy is] a trained police officer [who] knows that weapons can hurt other police officers in many ways. Ladies and gentlemen, I submit to you even at this juncture that the evidence that the State has presented to you not only negates the defense's suggestions to you today, but proves beyond a reasonable doubt that this defendant had this gun in his waistband.
Defendant claims, first, that the statement was misleading, as Barley testified that defendant did not have a gun. Defendant further argues that by telling the jurors that "nothing" indicated anything other than what Tracy testified to, the prosecutor not only told the jurors they should discount Barley's testimony entirely, but suggested to the jury that defendant had an obligation to take the witness stand. We reject those arguments.
Because defendant did not object at the time the prosecutor made his remarks, we take that failure to mean that defense counsel did not, at trial, consider the remarks to be significant in the context of the prosecutor's summation. Macon, supra, 57 N.J. at 333; see also State v. Wilson, 57 N.J. 39, 50-51 (1970). That said, we do not in any event view the prosecutor's remarks as improper.
No doubt, "[a] prosecutor should not either in subtle or obvious fashion draw attention to a defendant's failure to testify." State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991). But, here, the prosecutor did not make such a suggestion to the jury, nor did his remarks in any way suggest that the jury should discount Barley's testimony. The remarks were fair comment on the evidence, an effort by the prosecutor to negate the defense's attempts to challenge the reliability of Tracy's testimony. Thus, the court was under no obligation to provide a curative instruction to the jury with regard to those comments.
Defendant also claims that the prosecutor improperly bolstered Tracy's testimony by asking the following rhetorical question:
Do you think [Officer Tracy] just made [his testimony] up? He had the light and the distance to be able to determine that the handgun was small and black in color. There it is. Small and black in color. Ladies and gentlemen, what is Officer Tracy's motivation to fabricate these things? A sworn police officer. Do you think he wants to charge somebody that shouldn't be charged? Do you think he wants to write something in a report that really didn't happen? What is his motivation? What's his concrete stake in the outcome of this case? . . . Why would he lie? Why would he be less than careful? Why would he be less than positive? He wouldn't.
These comments too were a permissible response to defense counsel's attack on Tracy's credibility. Defense counsel argued that "it's incredible to believe that a gun was thrown into that area," as the officer testified. Referring to the gun, defense counsel claimed: "Of course, [Officer Tracy is] going to say this gun belongs to [defendant]." The prosecutor's closing comments were in direct response to those claims. In context, the prosecutor's arguments did not unfairly prejudice defendant. Engel, supra, 249 N.J. Super. at 379.
Finally, defendant challenges his fourteen-year extended prison term, with seven years of parole ineligibility, claiming it was excessive. We reject that argument.
Our review of a trial court's sentence is limited. We assure that the trial court followed the sentencing guidelines, properly determined and balanced the aggravating and mitigating factors, and properly exercised its discretion based upon competent, reasonably credible evidence. State v. Roth, 95 N.J. 334, 363-66 (1984). We will modify a sentence only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364.
Here, defendant was twenty-seven years old at the time he committed the offense. No dispute exists that he was eligible for an extended term as a persistent offender. N.J.S.A. 2C:44-3a. As the sentencing court pointed out, defendant had a history of multiple juvenile arrests, and nine indictable convictions on six different dates. Defendant's extensive history of prior convictions did not deter him from committing the subject offense. The court found aggravating factors three, six and nine, and no mitigating factors. The court properly evaluated the aggravating factors and did not, as defendant argues, fail to consider any applicable mitigating factors. The sentence does not shock our judicial conscience.
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