July 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ZAAIR TUCK, A/K/A MALIK A. KINMEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-09-0843.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2009
Before Judges Lisa and Sapp-Peterson.
Defendant, Zaair Tuck, was indicted for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5), upon a Union County Jail law enforcement officer. Following trial, a jury convicted defendant of fourth-degree aggravated assault. The court imposed an eighteen-month custodial sentence together with appropriate fines and penalties.
On appeal defendant contends:
OBSTRUCTING THE ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION SHOULD HAVE BEEN CHARGED AS A LESSER-INCLUDED OFFENSE OF AGGRAVATED ASSAULT. (NOT RAISED BELOW).
THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).
THE COURT ERRONEOUSLY FAILED TO PROVIDE ADEQUATE LIMITING INSTRUCTIONS REGARDING THE EVIDENCE THAT DEFENDANT WAS IN JAIL AND BELONGED IN THE JAIL'S DETENTION UNIT AS A RESULT OF HIS INFRACTION OF PRISON RULES AND REGULATIONS. (NOT RAISED BELOW).
DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR OPPORTUNITY TO PRESENT A DEFENSE.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Defense counsel did not object to the prosecutor's summation during the trial. Hence, we review defendant's claim of prosecutorial misconduct under the plain error standard, Rule 2:10-2, namely, whether the claimed error was "clearly capable of producing an unjust result." In the context of prosecutorial misconduct, we examine the record to determine whether the prosecutor's misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Ramseur, 106 N.J. 123, 322 (1987)).
Courts expect prosecutors in criminal cases "to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82. Prosecutors are "'entitled to sum up the State's case graphically and forcefully'" and need not act in a manner appropriate to a lecture hall. State v. Marks, 201 N.J. Super. 514, 534-35 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986) (quoting State v. Johnson, 31 N.J. 489, 510-11 (1960)). To that end, prosecutors are afforded considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented during the trial and the reasonable inferences to be drawn therefrom. Frost, supra, 158 N.J. at 85 (citing Marks, supra, 201 N.J. Super. at 534).
Against this standard, we conclude the prosecutor's comments during summation significantly strayed beyond the bounds of fair response to defense counsel's closing argument and they had the capacity to deny defendant a fair trial. Id. at 83. We therefore reverse.
We briefly review the facts relevant to our discussion. The alleged assault occurred while defendant was incarcerated at the Union County Jail. Correction Officer (CO) Anthony McKenzie was the alleged victim. According to McKenzie, defendant charged at him after he opened defendant's cell door in response to defendant's request to speak to him. Because McKenzie was the only person who witnessed the alleged assault, his credibility was a key issue in the trial. The defense strategy focused upon undermining his credibility by developing a reason why he would lie about the circumstances surrounding the incident. Defense counsel argued to the jury that McKenzie's excessive use of force was a reason why McKenzie lied about what happened in the cell. Defense counsel also argued that CO Sean Malone, who testified that he responded to defendant's cell when he heard defendant threaten to "fuck [McKenzie] up," backed McKenzie's story to "tow the party line."
Defense counsel suggested at three different points in his summation that the two officers "got together and to some extent concocted this story." Thus, it was certainly appropriate for the prosecutor during his summation to forcefully rebut this defense strategy. See State v. Frost, supra, 158 N.J. at 87. In doing so, however, he was not permitted "to respond to arguments raised by defense counsel" with commentary that "stray[ed] beyond the evidence" presented at trial. State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. denied, 177 N.J. 572 (2003). That is, however, what occurred here.
The prosecutor began his summation by acknowledging that the "primary source of evidence was Officer McKenzie" and stating that "basically what it comes down to, what [defense counsel] is saying is that Officer McKenzie lied." From there, the prosecutor made comments that were not based upon evidence in the record and, in our view, not based upon reasonable inferences that may be drawn from the evidence. Frost, supra, 158 N.J at 85 (citing Marks, supra, 201 N.J. Super. at 534). For example, the prosecutor told the jury:
What do we know about Officer McKenzie? What can you use to judge his credibility? He is a guy who said he is five-six, five-seven. He's worked in the jail for 12 years and a lot of that time he spent in the detention unit with inmates who are difficult . . . .
Let's say over 12 years he works like a regular person maybe 250 days a year for 12 years. That's 3,000 days that he's worked in the jail. Let's estimate conservatively that over those 3,000 days he has to deal with ten inmates a day. That's 30,000 times . . . he has had to get up close and personal with inmates who have been charged with some serious crimes and how many times has he been assaulted? Twice and this is one of them.
What does it say about Officer McKenzie? That he has been able to work there for all that time and dealing with thousands and thousands and thousands of inmates and only get assaulted twice. You know, if Officer McKenzie were a guy who had thin skin, who was aggressive, who antagonized inmates, he is a guy who would have been assaulted 50 or 100 times. These people are difficult, some of them, who are inmates in the jail. If you were that kind of person, he'd say, man, that happens to me all the time. I am always getting assaulted and in thousands and thousands of times he has been assaulted twice.
So what does it say about him? I submit to you it says he is a professional. He knows how to deal with people. He works every day over there. He knows how to defuse a situation and not inflame a situation. He is good with dealing with people [sic]. It indicates mostly, I submit, that he is a guy who wants to go to work and do his job and at the end of his shift go home safe.
. . . [T]he defense wants you to believe he goes in there and gets overly aggressive, he initiates the confrontation with [defendant]. If he were the kind of guy who would do that, he would have been assaulted a lot more times and he's not. It's happened to him twice.
As defendant argues, the record contained no evidence to support the prosecutor's foray into the mathematics of McKenzie's day-to-day run-ins with inmates. The prosecutor reasoned that twelve years with 250 days per year and ten interactions with inmates per day renders a "conservative" estimate of 30,000 times that McKenzie "has had to get up close and personal with inmates[,]" but that he has only been assaulted twice in that time. Nothing in the evidence would support the inference that McKenzie had ten close-contact interactions per day with inmates for twelve years.
Additionally, the prosecutor misstated the evidence. McKenzie testified that in his twelve years, this was only the second time he charged an inmate with assault, not the second time he had been assaulted. (emphasis added). Nothing in the evidence would support the prosecutor's statement that if McKenzie possessed the negative traits of being aggressive, antagonistic, or having "thin skin," then he "would have been assaulted 50 or 100 times." As defendant argues, because the testimony does not indicate how many times McKenzie was assaulted, he may have been attacked more than twice. Moreover, these facts that were outside the scope of the evidence and reasonable inferences urged the jury to infer that McKenzie was "professional," "knows how to defuse a situation," and "is good with dealing with people [sic]."
After making comments about the mathematical ratio of McKenzie's experience to the number of times he had been assaulted, the prosecutor continued to bolster McKenzie's credibility with additional facts that were not in evidence. This time, the prosecutor opined to the jury that had McKenzie fabricated his story, the alleged confrontation would have been much more violent and the alleged injuries much more severe:
Why would he lie? . . . What kind of person would it take to lie[,] to work a shift with somebody that you don't normally work with, have a confrontation with some inmates that you've never even dealt with, lie about it, charge the person with a crime and then come in here under oath and tell all of you, just continue the lie[?]
What kind of person would that take? I submit it would be the kind of person who has no conscience. It would take a degree of depravity to do that. It's serious to charge somebody with a crime and then come in under oath and lie about it. That is a serious thing. Did he seem like that kind of person to you? Did he seem depraved, the kind of person who would just fabricate out of thin air charges against somebody? Why would he do it? It doesn't make any sense.
If he were that kind of CO, if he were the kind of person who just liked to lie, to set people up, make up stories, charge people with things they didn't do, what would his story be? Wouldn't he come up with something like a really violent story if he were going to lie? If all he wanted to do was set him up, he could come in here and tell you, you know what? I opened that cell door and bam, bam, bam, bam, bam, he hit me like six times. He kneed me in the groin. Stepped on my feet. He tried to bite me. That's what he would have said if all he wanted to do was set him up.
If he were going to lie and set this guy up, his story would have been a lot more violent. He would have been oh, man, my wrist hurt, my chest hurt, my head hurt. I had to take two days off, a week off. I am on disability. That is not what he said at all. The very simple nature of his description of what happened, the basics, tells you he is telling the truth. It's a simple story. It's not some crazy assault that a person would come up with if they were going to lie.
And a person who was going to lie and just charge people would have told you it happened to me a hundred times. He would be doing it all the time. Two times.
These comments were pure conjecture and not based upon any facts or reasonable inferences from the record.
The prosecutor then commented on McKenzie's training, although no testimony had been elicited in this regard.
[W]hat saved Officer McKenzie from getting punched right in the head? What saved him? His training. He knew exactly what to do. That punch came, he got his hands up, blocked that punch and pulled him to the ground. He is a little guy and I submit to you that a regular person would have caught one right in the kisser. The person who didn't have the training would have been punched and punched hard because that's what the defendant was trying to do.
The record contains no reference by any witness to McKenzie's particular defensive techniques. While it appears that the prosecutor was attempting to explain how McKenzie was able to contain defendant despite the six to seven inches in height disparity that defendant enjoyed over McKenzie, he was not permitted to do so by introducing facts not in evidence or which could not be reasonably inferred from the evidence. Ibid.
The prosecutor continued this approach by asking the jury what motive Malone had to lie. He told the jury that, if Malone was going to concoct a story or "be involved in some crazy conspiracy to set up an inmate[,]" then he would have testified that he saw the punch thrown. The prosecutor summed up his assessment of the officers' credibility as follows:
Officer McKenzie's story makes sense. Officer Malone's story makes sense. They have no reason to lie about it. What do they get out of it? Why do they do it? Are they those kinds of people who like to set people up? You know, when they are done, they can go home and drown some puppies. Like, it's so far from reality, I submit, that somebody would do that. It's evil to do that. Did they seem like that? Just for the fun of it? Just for giggles. This is serious. [Emphasis added.]
We view these comments as rhetorical excesses and unwarranted hyperbole, particularly in light of the prosecutor's earlier comment to the jury that a person willing to make up such a story "has no conscience" and has "a degree of depravity."
Unquestionably, defense counsel's summation was forceful and focused upon defendant's contention that McKenzie was not credible and that Malone was simply "towing the party line." Unlike the prosecutor, however, defense counsel's efforts to undermine the credibility of the State's witnesses was accomplished with questions about defendant's cellmate, the time stamps on the incident reports in relation to the incident itself, the concurrent misspellings of defendant's name in the McKenzie and Malone reports, and comparing the height disparity between McKenzie and defendant. All of these comments related to evidence in the record, which was in stark contrast to many of the comments by the prosecutor that were not based upon the record or reasonable inferences gleaned from the evidence. We are therefore convinced that these prosecutorial excesses in the summation had the clear capacity to cause an unjust result and were so egregious that defendant was denied a fair trial.
The remaining arguments advanced by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
Defendant was not entitled to a jury instruction on obstructing the administration of law, N.J.S.A. 2C:29-1, as a lesser included offense of aggravated assault upon a law enforcement officer because it requires an element of proof not necessary to sustain a conviction for aggravated assault upon a law enforcement officer. Specifically, an obstruction conviction requires proof that defendant acted with the purpose of obstructing or impairing the administration of law or attempting to prevent a public servant from performing an official function. Ibid. Thus, although the two offenses are related, obstruction is not a lesser included offense. Hence, the trial court did not commit plain error by not sua sponte instructing the jury on obstructing the administration of law. See State v. Thomas, 187 N.J. 119, 132-26 (2006).
Next, the court's limiting instruction concerning the agreement between the State and the defense related to defendant's incarceration at the Union County Jail was sufficient to guide the jury as to the proper use of the fact that defendant was incarcerated at the time of the alleged assault upon McKenzie. A jury is not expected to make its decision in a "'void - - without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.'" State v. Cherry, 289 N.J. Super. 502, 522 (App. Div. 1995) (quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)) (upholding the admissibility of res gestae evidence of a police officer's murder outside a bar encompassed evidence that, earlier that day, the defendant and others had discussed robbing the bar that evening).
Finally, in light of our reversal, defendant's remaining claims related to ineffective assistance of counsel, the excessiveness of his sentence, and the court's evidentiary ruling on the admissibility of defendant's purported threat to sue McKenzie do not warrant further discussion.
Reversed and remanded for a new trial.
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