July 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VIETTE CHIPEPO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2010
Before Judges Graves and Sabatino.
On January 3, 2005, defendant Viette Chipepo and her husband Mwansa Chipepo were charged with second-degree conspiracy to promote or facilitate the crime of aggravated arson, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:17-1(a) (count one); and second-degree aggravated arson by starting a fire in the Township of Maplewood with the purpose of destroying a building or structure, in violation of N.J.S.A. 2C:17-1(a)(2) (count two). Following a joint trial, defendant was found guilty on both counts.*fn1 The court sentenced defendant to a five-year prison term.
On appeal, defendant presents the following arguments:
THE PROSECUTOR'S OPENING STATEMENT ALLEGED FACTS THAT WERE NEVER INTRODUCED INTO EVIDENCE DURING THE TRIAL, DEPRIVING THE DEFENDANT OF A FAIR TRIAL AND VIOLATING HER DUE PROCESS RIGHTS IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
THE CONVICTIONS AGAINST THE DEFENDANT WERE AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE SET ASIDE (NOT RAISED BELOW).
THE LOWER COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE CASE.
THE PROSECUTOR MADE IMPROPER COMMENTS ABOUT FACTS NOT IN EVIDENCE DURING SUMMATION REQUIRING REVERSAL OF THE DEFENDANT'S CONVICTIONS.
THE FAILURE OF THE LOWER COURT TO SENTENCE THE DEFENDANT AS A THIRD-DEGREE OFFENDER INSTEAD OF AS A SECOND-DEGREE OFFENDER, COUPLED WITH THE IMPOSITION OF A FIVE YEAR PRISON TERM, RESULTED IN A SERIOUS INJUSTICE WHERE THE JUDGE DETERMINED, AMONG OTHER THINGS, THAT THERE WERE NO AGGRAVATING FACTORS, INCLUDING NO SPECIFIC DETERRENCE NEED AND WHERE TWO MITIGATING FACTORS APPLIED.
REVERSAL IS REQUIRED BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.
After reviewing the record and the applicable law, we conclude defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we will summarize the key facts and comment briefly on Points I, IV, and V.
On April 9, 2004, at approximately 9:44 p.m., the Maplewood Fire Department responded to a fire at the residence of Taswiyah Raoof (Raoof), who was not at home when the fire started. Defendant and her husband resided next door. Prior to the fire, Raoof installed security cameras that recorded the areas around the house and driveway. The cameras videotaped those areas on April 9, 2004, and Raoof later provided her recordings to the Essex County Prosecutor's Office.
In his opening statement and in his summation, the prosecutor told the jury that the State did not intend to prove "that the two actors shown in the video setting fire to Ms. Raoof's house are these two [defendants]." Instead, the State's theory was "that whoever those two individuals were they were acting in full concert with Mwansa Chipepo and [Viette] Chipepo."
At trial, Lieutenant Carl Kling (Kling) of the Maplewood Fire Department testified that when he arrived on the scene, he observed "fire all around" a basement window. Kling also saw "scorching along the driveway and up against the side of the house," and he realized "it was an outside fire that was going into the basement."
Kling testified "there was an odor of gasoline" in the basement and, when he was performing a "secondary search" of the house, Kling saw a TV monitor that was on in the front bedroom. Kling assumed that the monitor was hooked up to surveillance cameras outside of the residence because he could see his personnel working outside. When the police interviewed Raoof, she confirmed she had a security video system with cameras that were working when the fire started, and the cameras were attached to a recording device. At trial, Raoof testified that when she watched the video of the events that took place just before the fire, she saw two people in her driveway but could not identify who they were.
While canvassing the area for evidence the next day, April 10, 2004, the police found a black plastic trash bag with a gas can inside located in some bushes approximately 100 yards from where the fire had occurred. Sergeant Michael Marucci (Marucci) testified that when he emptied the contents of the gas can into a container, "[i]t smelled like gasoline." In addition, Marucci testified the "gas can appeared to be new," and he decided to check area stores to determine where it was purchased. As a result of his investigation, Marucci learned that a gas can, along with trash bags, gloves, and an "Aim & Flame" lighter were sold at a local Home Depot store on the same day as the fire. Marucci testified the transaction had been recorded by a Home Depot surveillance camera and stated that when he viewed the surveillance video, he recognized the defendant:
Q: Did you recognize any of the individuals depicted in that video that you watched?
Q: Who did you recognize?
A: Mr. and Mrs. Chipepo.
Q: In looking at the video, could you see in the video any of the items that were being purchased at that time?
Q: What items could you identify by looking at the video?
A: I identified a gas can. I identified a lighter. I identified a pair of gloves. And I identified a . . . box of Glad trash bags.
Marucci also testified he observed another video taken by a Home Depot surveillance camera that showed defendant and her husband entering and leaving the store. Moreover, according to Marucci, when defendant arrived at the scene of the fire, she told him she "figured that her and her husband would be suspects in this incident."
Defendant did not call any witnesses, but testified on her own behalf and denied any wrongdoing. According to defendant, she and her husband owned investment properties and used a lawnmower to maintain those properties. She claimed they needed a new gas can so they bought one and left it on their deck. She also testified that at the time of the fire, she was having dinner with her mother at "TGIF in West Orange." Defendant denied telling Detective Marucci at the scene of the fire that she thought she and her husband might be suspects.
Defendant's husband elected not to testify and did not call any witnesses in his defense. However, in a statement to the police on April 14, 2004, he denied any involvement in the fire. In his written statement, Mwansa Chipepo said he was in New York City on April 9, 2004, and returned home about an hour after his wife called and told him about the fire.
Following summations, defendant moved for a judgment of acquittal, arguing the State's evidence was insufficient to prove the offenses charged. The court denied the motion, concluding the jury could find defendant guilty beyond a reasonable doubt based on the evidence presented. On May 18, 2006, the jury found defendant guilty on both counts of the indictment.
In her first point, defendant argues the prosecutor's comment during his opening statement that her relationship with Raoof was "less than friendly" deprived her of a fair trial because it was never supported by the evidence. Defense counsel immediately objected to the prosecutor's comment and the court sustained the objection, instructing the prosecutor to "move on" without further reference to defendant's relationship with her neighbor. The court ruled, however, that such evidence might be admissible during Raoof's trial testimony.
As this court has previously noted, a prosecutor's opening statement to the jury "should provide an outline or roadmap of the State's case. It should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence." State v. Walden, 370 N.J. Super. 549, 558 (App. Div.) (quoting State v. Torres, 328 N.J. Super. 77, 83-84 (App. Div. 2000), certif. denied, 182 N.J. 148 (2004)). "Prosecutorial misconduct has been found in cases when prosecutors make statements clearly contrary to evidence that was either included or excluded at trial." State v. Jenewicz, 193 N.J. 440, 472 (2008). However, to constitute reversible error, prosecutorial misconduct must be "so egregious that it deprived defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Defendant claims the prosecutor's comment "provided the jury with a motive for the alleged crime that was not supported at trial by any evidence." Moreover, when defense counsel attempted to question a State's witness regarding the relationship between the defendants and Raoof, the State objected and the court sustained the objection, ruling there was no competent evidence to support that line of questioning. Nevertheless, during his summation, defendant's attorney told the jury there was "bad blood between the parties. They were neighbors."
In addition, the jury was instructed as follows prior to the attorneys' opening remarks:
What is said in opening statement is not evidence. The evidence will come from the witnesses who will testify, and from whatever documents or tangible items that are admitted into evidence. . . . At the conclusion of the testimony the attorneys will speak to you once again in summation. . . . Again, this is not evidence but their recollection as to the evidence. It is your recollection of the evidence presented that is controlling.
Under these circumstances, we conclude that the prosecutor's brief reference to the "less than friendly neighborly relationship" between defendant and Raoof, the victim of the arson, was not so prejudicial or "egregious" that it constituted reversible error. Frost, supra, 158 N.J. at 83.
In Point IV, defendant contends the prosecutor's statement in his summation "that the fingerprint on the gas can found by the police in the Radio Shack bag belonged to 'the person working the register' in the Home Depot store" referred to facts not in evidence. According to defendant, this remark "warrant[s] reversal and a new trial" because "[t]here was no testimony in this case linking the fingerprint found on the gas can to anyone who worked at the Home Depot."
Defendant also claims the following statements, made by the prosecutor during his summation while the victim's surveillance video was shown to the jury, were "unsupported by the evidence . . . and amounted to pure speculation":
[O]ne actor [on the video] started to pour the liquid alongside the house. Okay. The other actor hands in pockets is standing looking where? At the street. . . .
Looking out. Is he looking out? Does he appear to be looking out? Where's he looking out for? The next door neighbor with the windows and the deck facing the area where this is going on? Is he paying any attention to that? No. . . . He's looking at the street. What does that suggest to you? Might that suggest to you . . . They had nothing to fear.
When a defendant claims a prosecutor made inappropriate remarks during a summation, we must determine whether the prosecutor's "conduct was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83; see also State v. Ramseur, 106 N.J. 123, 322 (1987). Our analysis is guided by the following factors: whether defense counsel made a timely objection; whether the remark was withdrawn promptly; whether the trial judge ordered the remarks stricken; and whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322-23.
A prosecutor may not refer to any fact not presented to the jury, but may comment on legitimate inferences from facts that are properly before the jury. State v. Farrell, 61 N.J. 99, 103 (1972); State v. Perry, 65 N.J. 45, 48 (1974). In addition, if a defendant does not object to the remarks at trial, an appellate court usually will not consider them prejudicial, because the failure to object "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made" and "also deprives the court of the opportunity to take curative action." State v. Papasavvas, 163 N.J. 565, 625-26 (2000) (quoting State v. Timmendequas, 161 N.J. 515, 575-76 (1999)).
In this case, defense counsel objected to both of the prosecutor's comments. But the court did not order either remark stricken from the record or instruct the jury to disregard them because it considered them to be permissible inferences based on the evidence. In response to defendant's objection to the prosecutor's comment concerning the fingerprints on the gas can, the court immediately instructed the jury as follows:
What an attorney says is not evidence. The evidence comes from or came from the witness stand, [from] people who testified and documents that I admitted into evidence. Th[ese are] the comments of the attorneys on their recollection of the evidence. It's your recollection of the evidence that controls. The . . . power to make inferences . . . or reject inferences is totally and 100 percent within the power of a jury.
Next, with respect to the prosecutor's remark that the individuals shown on the victim's surveillance video had "nothing to fear," the court ruled that the prosecutor's comment was an inference that the jury could "accept or reject" and it was "up to the jury to find the facts in the case." Thus, the jury was reminded that the prosecutor's remarks were not evidence, and it was the jury's recollection of the evidence that controlled.
We are satisfied the prosecutor's reference to the fingerprints on the gas container found at the scene was not prejudicial because it did not connect defendant to the arson. Similarly, the prosecutor's comment that the perpetrators "had nothing to fear" was a legitimate inference that does not require reversal. See Perry, supra, 65 N.J. at 48 ("Appraised against the background of the trial, the whole summation and the judge's charge, the passage complained of did not vitiate the fairness of the trial."). Under these circumstances, defendant cannot demonstrate that the prosecutor engaged in such egregious misconduct that reversal is warranted.
Defendant also claims the trial court erred when it rejected her request to be sentenced to a degree lower----as a third-degree offender----rather than a second-degree offender.
The court found no aggravating factors and two mitigating factors: (1) defendant had previously led a law-abiding life; and (2) she was unlikely to commit another offense. N.J.S.A. 2C:44-1(b)(7) and (9). Nevertheless, the judge determined that defendant was not entitled to be sentenced as a third-degree offender. See N.J.S.A. 2C:44-1(f)(2) (authorizing such a sentence only "where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors" and where the interest of justice requires a downgrade).
We conclude from our review of the record that the court's findings were based on competent and credible evidence; the court correctly applied the sentencing guidelines enunciated in the Criminal Code; and it imposed a reasonable sentence based on a proper weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case. See also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to refrain from "second-guessing" the discretionary assessments of sentencing judges).
According to the sentencing transcript, the court imposed a five-year prison term on count two (second-degree aggravated arson), but the judgment of conviction erroneously states that count two was dismissed and a five-year prison sentence was imposed on count one (second-degree conspiracy to commit aggravated arson). The State suggests that "Count One . . . merged or should have merged into Count Two." However, neither the sentencing transcript nor the judgment of conviction indicates that count one was merged into count two. Accordingly, a remand is necessary for the entry of a corrected judgment of conviction that accurately reflects defendant's sentence.
The convictions and sentence appealed from are affirmed. The matter is remanded solely for correction of the judgment of conviction.