March 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN HOLMES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-05-517.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Graves and J. N. Harris.
Defendant was convicted by a jury of second degree burglary, N.J.S.A. 2C:18-2(a)(1). He was thereafter sentenced to a term of five years incarceration, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant now seeks reversal of this conviction, based upon the following challenges:
THE PROSECUTOR'S COMMENTS IN SUMMATION HIGHLIGHTED DEFENDANT'S FAILURE TO TESTIFY, DEPRIVING DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9. 10) (NOT RAISED BELOW).
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant and his former paramour of three years mutually agreed upon an informal shared child custody arrangement for their then thirteen-month old daughter. On Christmas Eve 2005, defendant was scheduled to drop the child at the home of the mother early in the morning. At that time, the child's mother was romantically involved with another man.
Shortly after 7:00 a.m., defendant arrived without his daughter--apparently not intending to drop the child off--and approached the door of the mother's residence. Immediately upon opening the door to the apartment, defendant entered, and a fight quickly ensued between defendant and the replacement boyfriend. During the struggle, defendant was injured, suffering a stab wound to his back that had been inflicted by the boyfriend, apparently in self-defense. Defendant immediately fled the scene.
Around 8:00 a.m., the police arrived in response to a 9-1-1 call. Defendant's former paramour and her boyfriend accompanied the police officers to police headquarters where they provided statements of what took place earlier that morning in their apartment. Later in the day, defendant also arrived at police headquarters where, upon observing defendant's back wound, the police escorted defendant to the emergency room at Cooper Hospital in Camden.
Following a procedure in the hospital triage that determined defendant's medical treatment could be deferred, he spoke with Detective Scott Wallace, who reported that defendant admitted forcing his way into the apartment and that once inside, a fight broke out. Detective Wallace testified that defendant had been angry that morning because he had to drop off his daughter at a location where the new boyfriend was present.
According to Detective Wallace, defendant "quoted to me that he knew he fucked up, and that's why he left [the apartment]."
At trial, defendant elected not to testify on his own behalf, after being advised by the trial court of his respective rights in that regard. During the assistant prosecutor's summation--in response to defense counsel's suggestion to the jury that there was no proof beyond a reasonable doubt that defendant harbored an intention to assault the boyfriend when he entered the apartment--she said:
With respect to any sort of explanation for why he was there, it just doesn't exist. He had no other purpose to be there because the child was not with him. She was never dropped off. He himself had admitted to forcing his way in, to what occurred, and why he left.
He doesn't go to the police station, ladies and gentlemen, until hours after this incident occurred. If he were in such a position where he was invited in and sustained an injury, you would assume that he would go to the police, call the police, and say I was just stabbed. Something just happened, and I was just stabbed, not I knew I screwed up, and that's why I left.
Defense counsel did not object to these comments at the time they were made. Now, for the first time on appeal, defendant claims that the prosecutor's retort impermissibly trampled the absolute constitutional right afforded to him to remain silent, and represented an invidious comment to the jury about defendant's exercise of that right.
Shortly thereafter, also without objection, the court instructed the jury about defendant's right to remain silent:
As you know, the defendant elected not to testify at trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your deliberations or discussions in any manner at any time. Defen - - the defendant is entitled to have the jury consider all evidence presented at trial and is presumed innocent, even if he chooses not to testify. [(Emphasis added).]
Defendant argues that "[t]he use of the term 'even' in the last sentence of the charge is so powerful and so damaging that it undermines everything that precedes it." Defendant claims that the use of this single word impermissibly skewed the constitutional calculus and conveyed to the jury the idea that defendant should not have exercised his right to remain silent.
Because the issue of impropriety in the assistant prosecutor's summation was not raised by defense counsel at trial, it is evaluated on appeal by the plain error standard. See R. 1:7-2; R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
To determine whether prosecutorial misconduct during summation warrants a reversal, we must assess whether this misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citation omitted). In making this assessment, we must also consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citation omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a presentation of the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere... [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)).
As a final matter, we note that this court has frequently held that a prosecutor may respond to arguments made by defense counsel during summations. State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996); State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000); State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). We are also aware of the principle that "[i]t is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935)).
According to defendant, the prosecutor's summation remarks "amounted to forbidden comment on defendant's exercise of his Fifth Amendment rights, and violated defendant's common-law statutory right against self-incrimination." We do not agree. The prosecutor's statements were in direct response to comments issued by defense counsel, who suggested in his summation that when defendant arrived at the apartment he was essentially invited inside only to be brutally attacked by the boyfriend. The State's summation was intended to suggest the incongruity of that scenario as evidenced by--after having been the alleged victim of a stabbing--the fact that defendant did not complain about, or much less report, the conduct of the alleged aggressor. The prosecutor's statements were made in the context of these arguments, not for the purpose of adversely commenting upon defendant's right to remain silent or to imply impermissibly that defendant had somehow misused that silence. In our view, the prosecutor's response was not improper.
In considering defendant's second challenge, since there was no objection at trial to the jury instructions as given, we review defendant's challenge again under the plain error standard. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety... prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The alleged error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised... was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
The single offensive sentence--nay, the lone word objected to: "even"--in the trial court's jury charge stated, "[t]he defendant is entitled to have the jury consider all the evidence presented at trial and is presumed innocent, even if he chooses not to testify." Defendant's argument boils down to a linguistic clash between the use of the word "even," supposedly "unmistakably and inescapably telegraph[ing] the message that the defendant should have testified," and the alternate word "whether," which instead indicates "alternative conditions or possibilities."
When viewed through the lens of the totality of the jury instructions, along with all of the evidence that the jury was asked to consider, we cannot discern the semantic sin as alleged by defendant. Although we appreciate that the current model jury instruction*fn1 eliminates the use of the word "even," its deployment in defendant's trial neither had the capacity to infect the jury's consideration of the evidence nor erode our confidence in the fairness of its verdict.
We affirm the judgment of conviction.