July 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS J. JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-01-0371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2009
Before Judges Axelrad and Lihotz.
Defendant Thomas Jones, charged with the third-degree offenses of possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); possession with intent to distribute a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count two); resisting arrest, N.J.S.A. 2C:29-2(a) (count three); and eluding arrest, N.J.S.A. 2C:29-2(b) (count four); appeals from a jury verdict finding him guilty on counts one and four and the resultant sentence imposed. On appeal, defendant presents these issues for our consideration:
THE PROSECUTOR'S MISCONDUCT DURING OPENING STATEMENT AND SUMMATION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amends. VI, XIV; N.J. CONST., ART. I, ¶¶ 1, 9, AND 10 (Not Raised Below).
THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT IS MANIFESTLY EXCESSIVE.
The evidence disclosed at trial reveals defendant was signaled to pull over for a traffic stop when Officer Greg Miller noted he was driving while not wearing a seatbelt. Miller pulled his police vehicle behind defendant, blew his air horn and turned on the overhead lights. When the lights were switched on, the Mobile Vision in-dash video camera was activated. Defendant did not stop his vehicle. The police continued to follow defendant who was alleged to "roll through" a stop sign, turn without benefit of turn signals, and accelerate his speed rather than stop. As defendant continued to drive, the officers saw him throw objects from his car window toward an open trashcan. Thereafter, defendant pulled to a stop. Miller's partner, Officer John Cline, retrieved the discarded objects, later identified as seven bags containing crack cocaine. Defendant was arrested. In a search incident to arrest, the officers recovered $700 from defendant's pocket.
At trial, in addition to the police officers' testimony, the State introduced the video of the encounter as recorded by the Mobile-Vision system. The parties stipulated the gross weight of the cocaine found near the trash can totaled 6.5 grams. Defendant testified in his own behalf. He stated he wore a seatbelt at all times, explaining "it's part of the door." He admitted he did not immediately pull over when signaled by the police officers because of a concern resulting from a prior stop when he was assaulted by apprehending officers. Defendant was looking for a busy area with "people around" to pull over. Defendant denied having drugs in his possession or throwing anything from his car window.
The jury rendered its verdict. Judge Natal denied defendant's motion for a new trial, granted the State's motion for a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3(a), and sentenced defendant to a five-year term with a two and one-half year period of parole ineligibility on count one, to be served concurrently with an eight-year extended term with a four-year period of parole ineligibility on count four. Counts two and four were dismissed. All applicable penalties and assessments were imposed along with a one-year suspension of defendant's driver's privileges. By our order, defendant's appeal was deemed timely filed.
Defendant's challenge centers on comments made by the prosecutor in his opening statement and summation, alleged to have improperly bolstered the credibility of Officers Miller and Cline. Specifically, defendant cites two instances of alleged prosecutorial misconduct warranting reversal. The first occurred in the State's opening as follows:
But what's going to happen is, the officers are going to come in; they're going to get sworn; they're going to testify that they're going to tell the truth. And one of the things the [j]udge mentioned to you in his instructions is credibility. Ask yourselves, what do these people have to gain by their testimony? What do they do here? Do they have to lie? Is this just doing their job? What is it?
The second is found in the State's closing statement as follows:
Ladies and gentleman, he's a convicted criminal of five different crimes. That's credibility. Ask yourself when you talk about the officers' credibility: what do they have to gain; what do they have to lose? . . .
Okay? Commonsense, credibility. What do these officers care about whether or not they arrest somebody? Or give them a ticket. They're just doing their job . . . . They have nothing to gain, they have nothing to lose by taking the stand and telling the truth. I would suggest to you [defendant] has everything to gain and everything to lose. Use that when you weigh credibility.
At trial, defendant lodged no objection to the prosecutor's comments, so we review them utilizing the plain error standard.
R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971) (noting the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached"). We must be satisfied that any error had the clear capacity to deprive defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437-38 (2007), cert. denied, __ U.S. __, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008); State v. Papasavvas, 163 N.J. 565, 625 (2000). "[W]e will not reverse unless the error was 'clearly capable of producing an unjust result.'" State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (quoting R. 2:10-2), certif. denied, 188 N.J. 489 (2006); State v. Jenkins, 178 N.J. 347, 361 (2004).
The limits placed on the State's advocacy are well defined. "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (citing State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997)), certif. denied, 182 N.J. 148 (2004). Also, when commenting on credibility, "[a] prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (citing State v. Marshall, 123 N.J. 1, 154 (1991)). Finally, it is improper for the prosecutor to cast unjustified aspersions on the defense. State v. Smith, 167 N.J. 158, 177 (2001).
Suggesting credibility was the crucial issue in the case, defendant argues the prosecutor's remarks improperly vouched for the credibility of the police officers and impugned his credibility and version of the facts, interfering with the jury's right to make credibility determinations. Defendant believes the asserted misconduct had a clear capacity to lead to an unjust verdict, and therefore, requests a new trial. State v. Frost, 158 N.J. 76, 88-89 (1999).
Following our review, we reject defendant's argument, and we are not convinced the prosecutor's remarks were sufficiently egregious such that they were capable of depriving defendant of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987). First, we do not agree the series of questions in the State's opening statement in any way exceeded permissible bounds. Second, neither instance cited demonstrated the prosecutor's expression of a personal opinion of the officer's credibility, Marshall, supra, 123 N.J. at 154, or included an attempt to lend the prestige of the prosecutor's office to bolster the witnesses' credibility. State v. Michaels, 264 N.J. Super. 579, 640 (App. Div.), aff'd, 136 N.J. 299 (1994). Third, the summation comment does not rise to plain error. The prosecutor's statement was more than a general comment on the evidence; it suggested one reason for accepting the officers' testimony was because they were doing their jobs, as police officers. See State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968) (it is improper to suggest testimony should be accepted because a witness is a police officer). However, in this case, the remark linking the believability of the testimony to the role of a police officer, while better left unsaid, can be viewed as a fair response to defense counsel's attack, which suggested the officers stopped defendant without reason, likely based on race. See State v. DePaglia, 64 N.J. 288, 297 (1974) (prosecutor's remarks deemed harmless when responding to a remark by opposing counsel); State v. Wilson, 57 N.J. 39, 50 (1970) (same). Fourth, reviewing the summation as a whole, the passing comment cited was not an unfair attack on defendant's testimony. Defense counsel's "failure to object suggests that [he] did not believe the remarks were prejudicial at the time they were made," and that failure "deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84 (citation omitted). Finally, the jury was provided with more evidence to discern defendant's guilt than simply weighing the testimony of the police officers and defendant. Crucial to the State's evidence, particularly on the issue of whether defendant threw something out his car widow, was the videotape of the incident. Overall, the prosecutor's remark did not have the capacity of lead to an unjust result.
We also note Judge Natal clearly and thoroughly instructed the jury on its factfinding role. In this regard, the jury was told the comments of counsel were not evidence and it alone must determine the facts and credibility of the witnesses. The jury clearly understood its role, uncluttered by counsel's comments.
Next, defendant asserts the extended term sentence imposed was manifestly excessive. Defendant concedes he was eligible for a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3(a). However, he argues the court abused its discretion in finding and weighing applicable aggravating and mitigating factors. We disagree.
In imposing sentence, the trial court properly identified the range when applying the extended term, stating the minimum ordinary term and maximum extended term. State v. Pierce, 188 N.J. 155, 170 (2006). The judge found one mitigating factor, N.J.S.A. 2C:44-1(b)(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm") and enumerated three aggravating factors, that is, the risk of recidivism, N.J.S.A. 2C:44-1(a)(3), defendant's prior criminal record N.J.S.A. 2C:44-1(a)(6), and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). Defendant argues the court erroneously rejected application of mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm); and four, N.J.S.A. 2C:44-1(b)(9) (substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense).
The court considered defendant's arguments seeking applicability of these factors and rejected them. The evidence does not support the claimed mitigating factors, and we have no basis to disturb Judge Natal's reasoned exercise of discretion.
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