May 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS SANTIAGO, A/K/A JOSE MORALES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-07-0689.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2010
Before Judges Fisher and Sapp-Peterson.
In this appeal, we consider whether defendant's conviction should be reversed and a new trial ordered based on defendant's claims that the prosecutor engaged in misconduct during his summation "by boldly expressing his personal belief of the strength of the case," and by using "language which attempted to highlight the victim's race." Defendant also argues that his sentence was excessive. We reject these contentions and affirm.
The jury heard evidence during a two-day trial from which it could conclude that defendant, while working in a supermarket in Springfield, overheard a co-worker speak about a limitation on overtime for some employees. Thinking this referred to him, defendant accosted Quadir Canty in the mens' room. Canty testified that he retreated to the ladies' room, but defendant followed and continued his angry tirade. Canty explained what thereafter occurred in the following way:
Q: [W]hile walking in the bathroom, did he threaten you?
Q: Did he threaten your life?
A: Yes, he did.
Q: Did . . . he refer to you by any other names or terms?
A: Of course, he called me out of my name. As we was walking, I told him I ain't going to fight. He said he want to fight. He called me a nigger, all of that. I took it in. And he said he want to kill me. He was talking out of his mind. He was acting out of the ordinary. He wasn't even himself.
Without further warning, defendant struck out with a boxcutter, wounding Canty's face, his left and right upper arm, and underneath one armpit.*fn1
The jury found defendant guilty of: second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge imposed an eight-year prison term with an 85% period of parole ineligibility, on the second-degree offense. The judge merged the other convictions for sentencing purposes.
Defendant appealed, presenting the following arguments for our consideration:
I. DURING CLOSING ARGUMENT, THE PROSECUTOR COMMITTED SEVERAL INSTANCES OF PROSECUTORIAL MISCONDUCT, THEREBY DENYING THE DEFENDANT THE ABILITY TO RECEIVE A FAIR TRIAL (PARTIALLY ARGUED BELOW)
A. The prosecutor committed prosecutorial misconduct by boldly expressing his personal belief of the strength of the case (Not argued below).
B. The prosecutor twice used language which attempted to highlight the vic- tim's race and inflame and prejudice the injury (Partially argued below).
II. THE SENTENCE RECEIVED BY THE DEFENDANT WAS ERRONEOUS AND EXCESSIVE
We reject these arguments and affirm.
In Point I-A, defendant claims the prosecutor improperly expressed his personal belief in the strength of the case. This contention was not asserted at trial. Accordingly, this argument cannot support reversal absent our determination that the alleged misconduct was "clearly capable of producing an unjust result." R. 2:10-2. See also State v. Morton, 155 N.J. 383, 421 (1998) (holding that this plain-error standard imposes on defendant "the burden of proving that the error was clear and obvious and that it affected his substantial rights"), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).
Specifically, defendant refers to the prosecutor's remark in summation that "[j]ust because a case is brief, does not mean it is close. This one is not; it is not close at all." We find no impropriety in this brief comment, which clearly was intended as a response to the following argument made by defense counsel in her summation: "Now I'm sure you understand that it was a short case -- what we would call a short case. . . . But the fact that it may have been a short case, short being an element of time, obviously does not mean it is not serious. It is a very serious case."
Prosecutors are afforded considerable leeway in closing arguments so long as their comments are reasonably related to the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995). Prosecutors, in fact, are expected to make vigorous and forceful arguments. Ibid. We do not view the comment in question as much more than an expression that merely because it took little time to present, the evidence should not be viewed as having little weight. And, even if the comment could be interpreted as a statement of the prosecutor's personal belief about the weight of the evidence, we reject the contention that such a brief comment was clearly capable of producing an unjust result.
In Point I-B, defendant argues the prosecutor improperly asked the jurors to put themselves in Canty's shoes. The State, in its appeal brief, acknowledges that the statement was improper, but correctly observes that the comment was not capable of producing an unjust result because the judge immediately called counsel to sidebar -- despite defense counsel's failure to object -- and advised the prosecutor of the impropriety of the argument. The judge then immediately gave the jury the following curative instruction:
Ladies and gentlemen, you are not to put yourselves in the shoes of anyone, a witness, a defendant, anyone whatsoever. You are not to decide this case using any passion, or bias, or prejudice, or any preconceived ideas about anything. You are to decide this case based on the evidence that you hear. So the comment that was made about putting yourself in the shoes of Mr. Canty is being stricken from the record.
In light of that rapid and effective response, the judge eliminated any potential prejudice to defendant.
Defendant also refers to the prosecutor's subsequent comments to the jury, which we quote at length:
What I'm attempting to say here for an African-American victim, as Mr. Canty is, Mr. Canty specifically when he hears that racial epithet used against him in the context of someone threatening to kill him, that, ladies and gentlemen, it is reasonable for Mr. Canty to believe that this person is more serious than if they had not used that epithet. And, ladies and gentlemen, I submit to you that someone using that epithet toward Mr. Canty would help explain part of the reaction that you see from Mr. Canty.
Now, there is no question, there is no question that Mr. Canty in this video is an unarmed man. He has no weapons on him. There is no question that this man right here is the one who walks up to him and slashes him in the face.
Ladies and gentlemen, the attempts to discuss what happens afterward, after that is done to his face, those are attempts to blur what the issue is before you. And the issue right here, ladies and gentlemen, is whether or not this man was defending himself when he walked up to Mr. Canty and slashed him right in his face.
At this point, the judge interrupted and again called counsel to sidebar to inquire about the prosecutor's intentions. However, before asking the prosecutor to respond, the judge turned to defense counsel and indicated he would not further inject himself if "the reason [defense counsel] d[id] not object is strategic." Defense counsel responded that she was satisfied to "[l]et it go a little more, see how far it goes." The judge inquired further whether defense counsel had an objection and she responded that she had no objection to what the prosecutor had said up until that point. Defendant does not argue that the prosecutor said anything else thereafter that was improper or prejudicial.
We need not determine whether the manner the prosecutor made use of the evidence that defendant hurled an epithet at Canty in the summation was improper. To the extent it could be said that the prosecutor's comments may have exceeded the bounds of advocacy, defendant invited any error by clearly advising the judge, who expressed a willingness to limit the prosecutor's summation, that she had no objection and was willing to allow the prosecutor to continue. State v. Jenkins, 178 N.J. 347, 358-59 (2004). Accordingly, we reject defendant's current arguments of prejudice with regard to the prosecutor's summation.*fn2
Lastly, we find insufficient merit in the arguments contained in defendant's Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2).