September 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEROME HILL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-07-1073.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Axelrad, Sapp-Peterson and Espinosa.
A grand jury indicted defendant, Jerome Hill, for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (Counts One and Two); third-degree possession of a controlled dangerous substance (C.D.S.), N.J.S.A. 2C:35-10(a)(1) (Count Three); third-degree hindering own apprehension, N.J.S.A. 2C:29-3(b)(2) (Count Four); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (Count Five). He was found guilty of two counts of third-degree aggravated assault and one count of third-degree resisting arrest. He was sentenced to serve an aggregate five-year period of incarceration, together with appropriate fines and penalties. The present appeal followed.
On appeal, he raises the following points for our consideration:
THE TRIAL COURT DEPRIVED MR. HILL OF DUE PROCESS AND COMMITTED REVERSIBLE ERROR BY SETTING ASIDE MR. HILL'S PLEA TO A THREE[-] YEAR TERM, AND THEN, JUST TWO DAYS LATER, OFFERING HIM THE CHOICE BETWEEN A PLEA TO A FOUR[-]YEAR TERM OR A TRIAL, BECAUSE IT CHANGED ITS MIND ON HOW TO PUNISH THE STATE FOR A DISCOVERY VIOLATION. (U.S. Const. [a]mends. VI and XIV; N.J. Const.  [a]rt. I, [¶] 1, 9 and 10).
THE TRIAL COURT ABUSED ITS DISCRETION BY TELLING THE JURY THAT IT HAD RULED PRETRIAL THAT THE POLICE OFFICERS HAD A RIGHT TO STOP MR. HILL, QUESTION HIM, AND ASK HIM FOR IDENTIFICATION.
THE STATE'S MISCONDUCT IN REFERRING TO EVIDENCE OUTSIDE OF THE RECORD DEPRIVED MR. HILL OF A FAIR TRIAL.
THE STATE IMPERMISSIBLY BOLSTERED THE POLICE OFFICERS['] CREDIBILITY BY RELYING ON PERSONAL OPINION, THUS DENYING MR. HILL OF HIS RIGHT TO A FAIR TRIAL.
THE COURT-SANCTIONED INTRODUCTION OF IRRELEVANT EVIDENCE BY THE STATE DEPRIVED MR. HILL OF A FAIR TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We have considered the points raised in light of the record and applicable legal principles, and we find them unpersuasive. We therefore affirm.
The following facts are relevant to the issues raised on appeal. After seeing defendant crouched in the bushes of a housing project located in a high crime area in the northern part of New Brunswick, Officers James Hoover and Michael Negvesky, who had been on routine patrol at night in a marked police vehicle, stopped their vehicle and observed defendant walking out from the courtyard. When defendant saw the officers, he "did an about-face and tried to go the other way" according to Officer Hoover. The officers got out of the car and told defendant to stop. Defendant complied, but appeared "very nervous" and "kind of jumpy" to Officer Hoover. When Officer Hoover asked defendant his name, he identified himself as Dwayne Hill. While awaiting a response from police headquarters to their warrant check, Officer Hoover noticed a driver's license sticking out of defendant's pocket. Officer Hoover took the license and saw that although defendant's picture was on the license, it bore the name of Jerome Hill. When questioned about the discrepancy between the name on the license and the name he had just provided to the officers, defendant "pushed off the car and ran around" Officer Hoover, who held onto defendant's jacket. Defendant removed his jacket, so the officer held onto defendant's shirt. Defendant stopped trying to run away, but scuffled with the officers. He was eventually restrained after pepper spray was sprayed on him. The officers and defendant received medical attention: Officer Hoover for a bite and cuts on his knees, defendant for the effects of the O.C.*fn1 spray, a type of pepper spray, and Officer Negvesky for a cut lip and knee.
In August 2006, the State offered defendant a negotiated plea to the possession charge and, in exchange, a three-year flat custodial sentence. However, defendant had not yet received discovery, although it had been requested. The plea offer was not accepted at that time. On December 15, the State once again offered defendant a three-year flat custodial sentence. Again defendant rejected the plea, and the requested medical records had still not been provided.
It was not until jury selection commenced in February 2007 that the State turned over the officers' medical records. After reviewing those records, defense counsel advised the State that defendant would accept the three-year flat custodial plea offer.
The State indicated that the offer available to defendant at that point was a four-year flat custodial term. The court expressed the view that without the medical records, defendant was unable to make an informed decision regarding the plea, particularly in light of the fact that the photograph that purportedly depicted a human bite mark on Officer Hoover did not appear to show such an injury. Once the medical records were turned over, the human bite was confirmed. The court stated:
I think the prosecutor's office is quite aware of this court's position that discovery, if discovery is provided and the defendant has everything he needs to know to make a valid decision, then this court will not interfere with an offer. Even if there is a plea that's entered, I rarely ever change the negotiated plea. But where there is a problem with discovery and I'm here on trial, I'm willing to sign a fourth page.
I'm willing to give him three despite the fact the State's offer is four.
The State would not agree to the three-year flat custodial sentence. While acknowledging the delay, the State's position was that it had attempted for months to get the records but was unable to do so. The State, however, never sought a court order to secure the records from the hospital, nor did the defense seek court intervention to compel the discovery. Additionally, the State took the position that it did not need the records to proceed with its case and that there was no guarantee that defendant would have accepted the reduced sentence had the records been available.
The judge was not persuaded by the State's arguments but did not find that the State's failure to provide the requested discovery was actuated by bad faith. The judge instead indicated that because the outstanding discovery had not been provided, the matter should not have been placed on the trial calendar, but also noted that she had not been the judge who signed the trial memorandum.
During a recess, with permission from defense counsel, the judge then engaged in the following colloquy with defendant.
THE COURT: Are you going to accept the plea, pleading guilty to aggravated assault on two officers and possession of heroin in exchange for the State offering you four years and this court advising you I will sentence you to three?
THE DEFENDANT: As opposed to the possession[?]
THE COURT: No. The State told you yesterday two aggravated assaults and possession. Are you going to take that plea?
THE DEFENDANT: Yes. Three flat?
THE COURT: Three flat.
The judge reviewed the matter with the Criminal Division Presiding Judge, who advised that the State was under no obligation to consent to the earlier plea offer and that if defendant wished to plead to the indictment, the court could make any representation it chose regarding sentencing. Defendant then pled to the indictment and the court represented that it would impose a three-year custodial sentence "if the information that shows up in the presentence report is how I understand it today."
Two days later, the matter reconvened, at which time the judge advised defendant in open court that she "was not going to go forward with the plea" because
I felt my taking the plea without the permission of the State was inappropriate. I was, as you know, upset that the State had failed to provide discovery in a timely fashion. I felt that was a problem in this case.
On the other hand, I am really not the Prosecutor, nor am I the defendant. I can't take your choice[,] nor their choice as to how to resolve this case.
What I will do is bar them from introducing evidence that was not produced and ordered by the [c]court in a timely fashion.... I have advised the State they cannot introduce the hospital records to the jury during this trial.
After effectively vacating defendant's guilty plea, the court afforded him an opportunity to plead guilty to the State's last offer of four flat. Defendant rejected the offer and proceeded to trial, where he was convicted of two counts of aggravated assault, one count of resisting arrest, and acquitted of the drug possession and hindering his own apprehension charges.
Defendant contends, pursuant to Rule 3:9-3(e), that the court did not have the authority to vacate the plea once it was entered and, relying upon State v. Taylor, 80 N.J. 353, 360-61 (1979), and State v. Smullen, 118 N.J. 408, 416 (1990), the court should have recognized the finality of the plea. We disagree.
Rule 3:9-3(e) addresses those circumstances where, at the time of sentencing, the "court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of the sentence[.]" This rule has no application to the court setting aside a plea that was improperly entered.
Here, there was no agreement between the State and the defense. The court accepted defendant's plea to the indictment and represented its preliminary sentencing intention as, essentially, a sanction against the State for its failure to timely comply with its discovery obligations. The impact of the court's actions, however, was to place the court in the role of affirmatively participating in plea discussions, an action that is expressly prohibited by court rule. R. 3:9-3(a).
Rule 3:9-3(a) provides: "The prosecutor and defense counsel may engage in discussions relating to pleas and sentences and shall engage in discussions about such matters as will promote a fair and expeditious disposition of the case, but except as hereinafter authorized the judge shall take no part in such discussions." None of the conditions that permit judicial involvement in plea discussions and agreements as set forth in Rule 3:9-3(c) permit the court to negotiate the actual plea agreement. State v. Warren, 115 N.J. 433, 442-42. Recognizing her error two days after taking defendant's pleas to the indictment, the court properly vacated the guilty pleas entered. Defendant's reliance upon State v. Taylor, supra, 80 N.J. at 360-61, and State v. Smullen, supra, 118 N.J. at 416, is misplaced, as both cases involved efforts to withdraw pleas by the defendants where there were plea agreements in place.
Defendant next argues that his conviction must be reversed because the court made a prejudicial statement to the jury when the court advised that it had previously ruled that "the officers had a right to stop [defendant] on May 21st and question him, including asking him for identification." Defendant argues that this statement bolstered the credibility of the police officers, and that pretrial matters should not be discussed at trial before the jury.
Additionally, defendant contends the prosecutor engaged in prosecutorial misconduct that denied him a fair trial when he told the jury about the court's pretrial ruling related to the lawfulness of the stop during his summation. Specifically, defendant objects to the prosecutor's statement that
This is not about a stop. It's not about an illegal stop. The judge is going to give you an instruction. These officers did nothing illegal by stopping that man. It was permitted under the law.
And we'll get into what the officers did correct in this case because they followed procedure. They followed the law.
Counsel [doesn't] want you to know that. He wants you to make it seem like these guys just went out there and stopped any old random person on the road. It's not what happened here.
Finally, defendant urges that the prosecutor's misconduct continued when he advised the jury that the police officers had no motive to lie.
The State argues that the prosecutor's challenged comments were in response to defense counsel's summation that directly placed before the jury that the police officers' actions were motivated by a desire to "advance their careers by contriving a street encounter with defendant." The State concedes that the prosecutor is not permitted to personally vouch for the credibility of the State's witnesses, such as by suggesting that a witness' testimony has been "checked out." State v. Cherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997). However, the State argues that is not what happened here. Rather, in response to defense counsel's summation, the prosecutor simply argued that the police did not have a motive to lie, which is different.
Because the challenged portions of the prosecutor's remarks and the court's instructions were brought to the trial court's attention, we review the claimed errors under the harmful error standard. R. 2:10-2. Our task is to determine whether the prosecutor's remarks and the court's instructions had the possibility of bringing about an unjust result, specifically, whether the comments and instructions were sufficiently egregious to "raise a reasonable doubt as to whether the error[s] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
We conclude the prosecutor's remarks, though inappropriate, were harmless, especially when considered in the context that they were primarily in response to remarks by opposing counsel. State v. DePaglia, 64 N.J. 288, 297 (1974). Moreover, the court's final charge to the jury effectively instructed the jurors that the comments of counsel reflected their personal opinions, which had no relevance to issues before the jury.
Here, defense counsel's strategy throughout the trial was to challenge the credibility of the State's two key witnesses, Officers Hoover and Negvesky, by pointing to inconsistencies between their testimony and the police report authored, focusing upon their actions under the alleged factual circumstances, and urging that their actions were motivated by their desire to advance their careers. Additionally, defense counsel attacked the physical evidence, in particular, the photographs of the officers' alleged injuries, and highlighted the testimony of the officer who recovered the heroin, Officer John Yurkovic, who could not recall from where he recovered the suspected heroin which defendant was charged with possessing.
In response to defense counsel's summation, the prosecutor in his summation, told the jurors that Officers Hoover and Negvesky were "rookie officers," and then rhetorically asked, "Where is their motive to lie? What is their motive to lie?
What is their motive to make this whole thing up?" The prosecutor essentially implied that there was no evidence of a motive for the officers to lie. We do not view these rhetorical questions as vouching for the credibility of the witnesses but, instead, a response to defense counsel's summation, by highlighting the absence of evidence that the officers were motivated by a desire to advance their careers.
We agree that it was improper for the prosecutor, in addressing Officer Yurkovic's testimony, to point out that this officer testified that he had been involved in numerous drug arrests and that in order to bolster the State's case, he could have lied and told the jury that the suspected heroin was recovered from defendant's clothing. It was also improper to tell the jury: "[H]e didn't. He was honest with you. He says I don't recall where I got it." Defendant, however, was not prejudiced by these comments inasmuch as the jury acquitted him of the drug charge. Additionally, the trial judge's curative instruction to the jury properly instructed the jury that the personal opinions expressed by counsel were not evidentiary and should not be treated as such.
Insofar as instructing the jury regarding her ruling that the officers had a right to stop defendant, the judge gave this instruction in the context of the court's broader instruction:
During the course of the trial[,] I was required to make certain rulings on the admissibility of evidence either in or outside of your presence. My rulings involved questions of law. The comments of the lawyers on these matters were not evidence.
Where I've decided questions of law, whatever the ruling may have been in any particular instance, you should understand it was not an expression by me or an opinion by me as to the merits of this case. Each matter was decided on its own merits.
One of the rulings I did make outside of your presence was a finding that the officers had a right to stop [defendant] on May 21st and question him, including asking him for identification.
When this instruction is considered in its entire context, we do not find, as defendant argues, the impact of the court advising the jury of its earlier ruling was "a direct endorsement of [defendant's] guilt... bolstered the credibility of the [S]tate's witnesses, [and] impermissibly tainted the jury in favor of the [S]tate." Even defense counsel, in his closing, acknowledged that the officers had a right to stop and question defendant:
This was a fight. My client was not in the process of being arrested. He hadn't committed any crimes. This was - - the police, they created this whole situation. And that's not for me to say. That's what the facts say. Had they just - - there's nothing wrong with them stopping my client, what are you doing here? Do you live here? What's going on? It's 11:00 at night. You're up to no good. You're allowed. That's proper and that's their duty, and nobody should take issue with that.
It's the way they did it.
Further, the court's instructions to the jury also advised that "the indictment is not evidence of defendant's guilt," "[a] defendant on trial is presumed to be innocent," "[t]he burden of proving each element of a charge beyond a reasonable doubt rests upon the State," that the jury's role was to "determine the credibility of the various witnesses as well as the weight to be attached to them," and that the comments of counsel are not evidence. Hence, any error the court committed in using its earlier ruling as an example of decisions it may have made outside of their presence and how the jury was not to consider that ruling or any of the court's rulings as expressing the court's position on the merits of the case did not have the clear capacity to produce an unjust result. R. 2:10-2.
The remaining arguments raised by defendant are without sufficient merit to warrant extensive discussion in a written opinion beyond the following brief comments. R. 2:3-11(e)(2).
Defendant argues that the trial court should not have admitted evidence regarding the nature of the area where defendant was arrested because it was irrelevant under N.J.R.E. 401 and prejudiced defendant. We disagree.
Testimony from the police officers that the area they were patrolling was a high crime area was relevant to explain why they reacted in the manner that they did. Given the lateness of the hour and what they observed, such observations would prompt any responsible police officer to conduct further investigation, irrespective of whether the observations were being made in a high crime area or a purportedly crime-free neighborhood. There was no abuse of discretion or prejudice to defendant resulting from the court's ruling permitting this testimony. See Verdicchio v. Ricca, 179 N.J. 1, 34 (2004).
In imposing a four-year flat sentence, the trial judge found there was a risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the nature and extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant from engaging in future criminal acts, N.J.S.A. 2C:44-1(a)(9). The judge also considered one mitigating factor, N.J.S.A. 2C:44-1(b)(5), that the police officers facilitated defendant's conduct. All of the factors the court considered were supported by substantial credible evidence in the record and the sentence imposed does not shock the judicial conscience so as to warrant its disturbance. State v. Roth, 95 N.J. 334, 364-65 (1984).