November 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE BAUREKO, A/K/A GEORGE BAUREKO, III; GEORGE C. BAUREKO; GEORGE C. BAUREKO, III; GEORGE BAUREKO, 111; GEORGE C. BAUERKO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-01-0025 and 06-01-0027.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges Carchman and R. B. Coleman.
Defendant, George Baureko, appeals from a final judgment of conviction for certain persons not to have weapons, unlawful possession of a shotgun, and theft. He appeals and raises two points of argument as grounds for reversal. First, defendant asserts that the prosecutor's improper line of questioning deprived him of his right to a fair trial. Second, he argues that the jury verdict was against the weight of the evidence. We reject both grounds, and affirm the judgment of conviction.
On October 24, 2005, defendant, an employee of Baureko Boys Disposal, arrived at Ethel Kindzierski's home in Carteret, New Jersey, to remove furniture for a fee of $400. That same day, employees from Aldo Carpets were removing an old carpet from Mrs. Kindzierski's basement. Defendant began removing the furniture from the house.
Shortly thereafter, Jonathan Hernandez, an Aldo Carpets employee, told Mrs. Kindzierski that he saw defendant enter the basement, go into the poolroom where a shotgun lay on the pool table, and remove the shotgun in a white wrapping. Mrs. Kindzierski confronted defendant with this information. Defendant denied taking the shotgun. Mrs. Kindzierski then called Mr. Hernandez up from the basement to repeat in defendant's presence what Mr. Hernandez had told her. Defendant again denied taking the shotgun and offered to let them inspect his truck. Both declined.
The next day, while the truck was parked at his home, defendant discovered the shotgun in the back of his truck. At trial, defendant stated that this was the first time he ever saw the shotgun. Defendant said that he planned to call Mrs. Kindzierski, but the Carteret Police Department called him asking about the shotgun first. He told Detective Materazzo that he had the gun. The detective asked defendant to bring the gun to police headquarters, and he did so.
In an indictment filed on January 6, 2006, a Middlesex County grand jury charged defendant with third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(c)(1), and third-degree theft, in violation of N.J.S.A. 2C:20-3. In a second indictment filed the same day, the grand jury charged defendant with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).
In a jury trial conducted over the course of three days - June 27, June 28, and June 29, 2006, the prosecutor, during cross-examination, asked defendant to assess the truthfulness of some of Mr. Hernandez's and Detective Materazzo's testimony. Defendant responded to these questions, and the defense attorney did not object. The trial concluded on June 29, 2006, and the jury found defendant guilty of all charges.
On September 13, 2006, the court sentenced defendant to three years imprisonment for unlawful possession of a weapon, three years for theft, and five years with a five-year parole disqualifier on the conviction for certain persons not to possess weapons. The judge ordered that all sentences run concurrently. Defendant filed a notice of appeal on July 25, 2007.
As noted, defendant argues that "the prosecution's improper cross-examination of the defendant violated his right to fair trial[,]" and that "the jury verdict was against the weight of the evidence." We address these arguments in reverse order.
Rule 2:10-1 of the Rules Governing Appellate Practice states:
In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.
Generally, we will not consider a weight of the evidence argument where, as in this case, defendant failed to move for a new trial on that ground as required by Rule 2:10-1. Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). While we recognize that in a criminal appeal, the appellate panel may entertain this argument in the interest of justice, we choose not to do so here. State v. Pickett, 241 N.J. Super. 259, 265-66 (App. Div. 1990); State v. Smith, 262 N.J. Super. 487, 510 (App. Div.), certif. denied, 134 N.J. 476 (1993).
Moreover, in this case the jury was given the opportunity to hear the facts, arguments, and to pass judgment on the credibility of witnesses. Giving due regard to that opportunity, it does not "clearly and convincingly appear that the verdict was the result of mistake, partiality, prejudice or passion." State v. Reyes, 50 N.J. 454, 464 (1967). See also Smith, supra, 262 N.J. Super. at 512. It is the jury's responsibility to "determin[e] whether the guilt of the accused has been proved beyond a reasonable doubt[,]" and our "review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its function." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985). In this instance, we will not intervene because the jury was both able to, and did, perform its function.
We now address defendant's contention that the prosecution's improper cross-examination deprived him of his right to fair trial. The New Jersey Supreme Court "has held that prosecutorial misconduct can be a ground for reversal where 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); see also State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). "In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court 'must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" Frost, supra, 158 N.J. at 83 (quoting State v. Marshall, 123 N.J. 1, 153 (1991)).
Among the specific considerations enumerated in Frost is "whether defense counsel made timely and proper objections to the improper remarks[.]" Frost, supra, 158 N.J. at 83. In general, improper remarks not timely objected to by counsel "will not be deemed prejudicial." Ibid. Further, a failure to object "deprives the court of an opportunity to take curative action." Id. at 84.
At trial, defendant did not object during the prosecutor's cross-examination regarding the following line of questioning:
Q: So essentially what you're saying is that Jonathan Hernandez had to have lied to Mrs. Kindzierski, is that right?
Q: And not only did he have to lie to Mrs. Kindzierski that one time, he would have had to lie to the cops the second time right?
A: Yes . . . .
Q: I was talking a little bit earlier about the fact that Jonathan must have told a series of lies between now and then. Evidently, Detective Materazzo [sic] must have been lying too, is that right?
A: How is that?
Q: Because he testified that there were guns in the basement on October 24th; didn't he?
Since defendant raised no objection to these remarks below, we are guided by a plain error standard, and "must disregard any error unless it is 'clearly capable of producing an unjust result.'" State v. Atwater, 400 N.J. Super. 319, 337 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95, (2004) (quoting R. 2:10-2)). Reversal of "conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Atwater, supra, 400 N.J. Super. at 337 (quoting Daniels, supra, 182 N.J. at 95).
There is no doubt that the prosecutor's line of questioning, asking if other witnesses lied in their testimony, was improper. See, e.g., State v. Bunch, 180 N.J. 534, 549 (2004) (finding that asking "defendant to assess the credibility of" witnesses was improper); State v. Frisby, 174 N.J. 583, 594 (2002) (finding the "assessment of another witness's credibility is prohibited"); State v. T.C., 347 N.J. Super. 219, 238-39 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003) (finding that the prosecutor's questioning was improper where during cross-examination the prosecutor asked defendant whether State witnesses had lied when they testified against her); State v. Green, 318 N.J. Super. 361, 378 (App. Div. 1999), aff'd, 163 N.J. 140 (2000) (where "cross-examination compels a witness to characterize the testimony of another witness [it] is, therefore, argumentative and highly improper").
It has been observed that a "[d]efendant's failure to object suggests that h[is] counsel did not believe the conduct was prejudicial and also made it impossible for the court to take timely curative action to ameliorate any adverse effect from the improper questioning." T.C., supra, 347 N.J. Super. at 238. Like the court in T.C., we find the prosecutor's improper line of questioning was not so egregious as to require reversal because he did not misrepresent or mischaracterize witness testimony, but rather attempted to highlight the discrepancy between defendant's testimony and that of the State's witnesses. Ibid. Further, the prosecutor "did not . . . emphasize or repeat defendant's responses during his summation[,] and the trial judge 'clearly told the jury that it was [their] responsibility to determine the credibility of witnesses.'" Ibid. "The prosecutor did not act improperly in pointing out the inconsistencies; the impropriety lay only in the form used to develop the point." Ibid.
Finally, we note that defendant's reliance on Frisby is misguided. In Frisby, the Court found that prosecutorial misconduct was grounds for reversal where police officers testified regarding the credibility of other witnesses. Frisby, supra, 174 N.J. at 595. There, the Court found the admission of the officers' testimony to be plain error because: "they recounted the out-of-court statements of non-testifying witnesses[;]" the officers told the jury that one witness's statements "substantiated" that of another; an officer testified that one witness was "more credible" than another; and "[t]he effect of police testimony essentially vouching [for another witness] cannot be overstated." Ibid.
In this case, the ramifications of the prosecutor's impropriety is not comparable to that in Frisby. Ibid. Here, the prosecutor's cross-examination only highlights the contradictions between State witnesses' and defendant's testimony, and there is no indication of vouching or undue prejudice. Therefore, we hold that while the line of questioning on cross-examination was improper, it was not clearly capable of producing an unjust result requiring reversal. See Green, supra, 318 N.J. Super. at 378; Bunch, supra, 180 N.J. at 549.
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