September 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALICE ROBERTS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-02-0258 and 07-02-0259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges R. B. Coleman and Alvarez.
Defendant Alice Roberts appeals her conviction for third-degree distribution of cocaine, N.J.S.A. 2C:35-5, and third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:5-2. She argues that the trial court improperly admitted a tainted in-court identification and deprived her of her right to effective assistance of counsel by preventing her attorney from making certain comments in summation. She also argues that the prosecutor's inflammatory arguments in summation amounted to prosecutorial misconduct. We affirm.
On October 6, 2006, the Middlesex County Prosecutor's Office Narcotics Task Force (Task Force) conducted an undercover "controlled buy" operation in which Officer Suzanne Kowalski was to purchase $100 of cocaine from a seller at the City Tavern in Woodbridge Township. Officer Kowalski had been assigned as an investigator with the Task Force since June of that year. Prior to the October 6 operation, Officer Kowalski had participated in roughly forty cases, twenty of them undercover and twenty as an undercover backup officer.
Just before the operation, Officer Kowalski and other members of the Task Force - which included police officers from Woodbridge, Rahway, New Brunswick, and Edison - met in a nearby motel parking lot to prepare. It was decided that Task Force Lieutenant Irma Alvarez, the supervisor of the October 6 operation, and Officer Joshua Alexander, a Task Force investigator, would serve as backup officers inside the bar. Three other backup officers would remain outside in a car parked in the City Tavern's lot.
The backup officers in the car - Detective James Crowell and Sergeant Robert Conway of the Rahway Police Department and Detective John Roesler of the Woodbridge Police Department - arrived at the City Tavern parking lot at approximately 6:20 p.m. When Officer Kowalski arrived at the City Tavern, Lieutenant Alvarez and Officer Alexander were already inside, seated at the bar next to one another. Officer Kowalski took a seat three seats to the right of Officer Alexander and two to the right of Lieutenant Alvarez.
At approximately 6:53 p.m., two females, one African-American and one Caucasian, walked into the City Tavern together. The black female approached Officer Kowalski and introduced herself as Alice. Officer Kowalski introduced herself as "Sue" and expressed an interest in purchasing narcotics. Alice told Officer Kowalski to place her hand behind her back; when she complied, Alice placed an item in her hand, and took $100 in exchange. The item later tested positive for cocaine. Alice then told Officer Kowalski that she was getting more "stuff" the following week, and to call her if she wished to purchase more. Officer Kowalski spoke to Alice face-to-face for approximately three to four minutes. It was the first and last time that Officer Kowalski viewed Alice in person until defendant's trial when she identified defendant as the seller named Alice.
On October 10, 2006, Officer Kowalski prepared a report in which she described her October 6 encounter with Alice. In that report, Officer Kowalski described Alice as a "black female, approximately 48 to 53 years of age, short black hair, approximately five-eight, five-ten inches tall, wearing a black shirt, black jacket and blue jeans." Sometime that same day, Officer Kowalski discussed the seller's general physical description with Detective Roesler.
On October 11, 2006, Brian Mieczkowski, another police officer working with the Task Force, provided Kowalski with a photograph, and explained that "he received this photo from Investigator Roesler, it was the photo of Alice Roberts." By that time, Officer Kowalski had been told that the full name of the woman she knew as Alice was "Alice Roberts." Officer Kowalski was not sure who told her the full name of the suspected October 6 seller named Alice, but she believed that it was approximately five minutes after the October 6 operation at a post-operation "meet-up" with the other officers. According to Officer Kowalski, no one told her that the picture represented the person who sold her drugs; rather, she was asked whether she could identify the person in the photograph and she said it was the person who sold her drugs at the City Tavern.
Later the same day, Officer Kowalski made a phone call to the telephone number she had been provided to get in touch with Alice. When a voice answered, Officer Kowalski asked for Alice. The person who answered the call told her to wait, and handed the phone to someone else. A second person introduced herself as Alice. Kowalski told Alice that she was "Sue," the "girl from the City Tavern bar from a couple of days ago." Kowalski then asked Alice whether they could "hook up" that night (street parlance for buy/sell drugs). Alice responded that she would send someone named Wendy to the parking lot of a nearby Seven-Eleven to complete the transaction. Alice said that Wendy was a white woman and would be driving a silver Nissan Altima.
An hour later, Kowalski went to the Seven-Eleven and met Wendy Cromwell, who matched the description provided by Alice. Cromwell confirmed that Alice had sent her. Kowalski gave Cromwell $100 in exchange for a powdery rock-like substance that later tested positive for cocaine. No arrests were made that day.
On October 20, 2006, Officer Kowalski was provided with another photograph at the police station, this time by Detective Roesler.*fn1 According to Officer Kowalski, when Detective Roesler showed her the photograph, he did not tell her that it was Alice Roberts; he only asked her to identify whether the person in the photograph was the person who sold her cocaine at the City Tavern. Officer Kowalski again positively identified the person in that photograph as the woman named Alice who sold her cocaine at the City Tavern on October 6.
On February 6, 2007, the Middlesex County Grand Jury returned Indictment No. 07-02-0259, charging defendant with a single count of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). The grand jury on the same day returned a separate indictment, No. 07-02-0258, charging defendant with third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and N.J.S.A. 2C:5-2 (count three). Counts one and two of Indictment No. 07-02-0258 charged a co-defendant, Wendy Cromwell, with distribution related offenses.
In May 2007, Cromwell was accepted into the Middlesex County Pretrial Intervention Program. The Pretrial Intervention Program allows low-level first time offenders to avoid prosecution by being placed on minimally-supervised probation and participating in various rehabilitative services. Successful completion results in dismissal of the criminal charges against the offender. N.J.S.A. 2C:43-12.
Trial was scheduled to begin on July 11, 2007 before Judge Frederick P. DeVesa. Before trial, on June 27, 2007, defense counsel moved for a Wade hearing*fn2 to exclude the out-of-court photographic identifications of defendant made by Officer Kowalski. On June 28, 2007, during motion arguments, Judge DeVesa resolved that he would hold the requested Wade hearing following jury selection, even though defendant's motion had been filed out-of-time. On the same date, Judge DeVesa granted the State's motion to join the two indictments pursuant to Rule 3:15-1.
On July 11, 2007, Judge DeVesa conducted the Wade hearing. Officer Kowalski recounted the timeline of events leading up to defendant's arrest, including the facts surrounding her out-of-court identifications at the police station. Officer Kowalski also made an in-court identification of defendant, who was sitting in the court room, as the drug dealer named Alice from the controlled buy at the City Tavern. She then viewed the same pictures of defendant she had viewed earlier at the police station, and stated there was "no doubt in her mind" that the person depicted in both photographs was the dealer from whom she bought cocaine at the City Tavern. Judge DeVesa ruled that evidence of Officer Kowalski's out-of-court positive photographic identification of defendant was inadmissible, but ruled that she could make an in-court identification of defendant at trial.
Trial proceedings continued on July 11, 12, 16 and 17. During the trial, Officer Kowalski recounted the events leading up to defendant's arrest and made a positive identification of defendant as the seller named Alice at the City Tavern. She also testified that she recognized the telephonic voice of Alice as that of the seller named Alice in the City Tavern. Officer Kowalski admitted that her observation of the seller's hair, described in her report as short hair, diverged from those of the other officers, but she maintained that she never saw the back of the seller's head.
Officer Alexander also made an in-court identification of defendant as the woman he saw make an exchange with Kowalski at the City Tavern. Officer Alexander, who was facing the seller during the controlled buy, testified that the seller's hair was long, but was pulled back into long, hanging braids with a "scrunchie." Officer Alexander stated that one would not be able to tell whether the seller's hair were short or long if viewed from an angle directly facing her. Officer Alexander's police report stated that the seller was approximately forty-nine years old, between five-foot-eight and five-foot-ten inches tall, and was wearing a black jacket with a black shirt underneath at the City Tavern.
Lieutenant Alvarez testified that she observed a black woman and a white woman enter the City Tavern and approach Officer Kowalski. According to Lieutenant Alvarez, the black woman was approximately five-foot-eight, wore a dark-colored military-style jacket, and had "braids going back." Though Lieutenant Alvarez did not have "face-to-face" contact with the seller, she could "observe her face" and was able to identify defendant in court as the same woman.
Detective Crowell, one of the backup officers conducting outside surveillance from a parked car in the City Tavern's lot, testified that he observed defendant walking into and out of the City Tavern. Detective Crowell observed two women, one black and one white, arrive in a white vehicle. It was "just getting dark out," so the parking lot's overhead lights were on, but Detective Crowell had a "good opportunity" to observe the faces of the two women. Detective Crowell recognized the black woman as Alice Roberts, who he already knew from prior occasions. According to Detective Crowell, the two women were in the bar for "[a] few minutes" before returning to their car and driving away. Detective Crowell identified defendant in court as the woman he saw walking into the City Tavern whom he recognized as Alice Roberts at the time.
Detective Roesler, another backup officer conducting surveillance from the parked car, testified that it was "still daylight out" and the parking lot was well-lit when defendant arrived at the City Tavern. Detective Roesler saw two women exit the car, one white, the other black, but he was "slumped down" in his car seat because he is well known in Woodbridge and did not want to jeopardize the operation. He was able to observe that the black woman was wearing a dark-colored jacket and had "braids in the back of her head." Detective Roesler testified that Detective Crowell, who had a clear view of the two women, stated "that's Alice Roberts" as the two women walked into the bar. Detective Roesler estimated that five to six minutes elapsed between the time the women entered the bar and the time the two women returned to their car and drove away.
Wendy Cromwell testified at trial that she made the October 11 sale in the Seven-Eleven parking lot at defendant's request. Cromwell said that she had been living with defendant "off-and- on" and was at defendant's home on October 11. On that date, Cromwell answered defendant's cell phone at approximately 6:30 p.m. and spoke with a caller who asked to speak to "Alice." Cromwell handed the phone to defendant, who, according to Cromwell, made arrangements with the caller to sell cocaine. Defendant then asked Cromwell to drive to the Seven-Eleven to make the sale of cocaine to the caller. According to Cromwell, defendant gave her the cocaine and instructed her that she was to receive $100 in return.
On July 17, the jury returned a verdict finding defendant guilty of distribution of cocaine and conspiracy to distribute cocaine. On September 14, 2007, Judge DeVesa imposed the mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), and imposed penalties and fines, sentencing defendant to a term of seven years incarceration with three years parole ineligibility on the sole count in Indictment No. 07-02-0259 (third-degree distribution of cocaine), and a concurrent term of five years incarceration with two years parole ineligibility on count three of Indictment No. 07-02-0258 (third-degree conspiracy to distribute cocaine).
On January 31, 2008, defendant filed the present appeal. The tardiness of the filing was due to attorney neglect, so defendant was permitted to file as within time.
On appeal, defendant's raises the following arguments:
POINT I: BY SHOWING A SINGLE PHOTOGRAPH OF THE DEFENDANT TO THE UNDERCOVER OFFICER, AND TELLING HER THAT THE DEFENDANT WAS THE TARGET OF THE POLICE UNDERCOVER OPERATION, THE POLICE IRREPARABLY TAINTED THE OFFICER'S IN-COURT IDENTIFICATION OF DEFENDANT AS THE PERSON WHO SOLD DRUGS TO HER.
POINT II: THE TRIAL COURT'S ERRONEOUS REFUSAL TO ALLOW DEFENSE COUNSEL TO ARGUE IN SUMMATION THAT THE POLICE DID NOT CONDUCT A LINEUP OR PHOTO ARRAY IDENTIFICATION PROCEDURE DEPRIVED DEFENDANT OF HIS [sic] SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL. POINT III: THE PROSECUTOR OVERSTEPPED THE BOUNDS OF PROPRIETY AND DEPRIVED DEFENDANT OF HIS [sic] CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IN SUMMATION HE BOLSTERED THE CREDIBILITY OF THE POLICE WITNESSES AND SOUGHT TO INFLAME THE JURY BY REFERRING TO POLICE EFFORTS IN "GETTING COCAINE OFF THE STREETS." (Not raised below).
First, we address whether the trial court properly admitted Officer Kowalski's in-court identification of defendant as the cocaine dealer from the City Tavern on October 6. We are convinced that the trial court's admission of the in-court identification was not "clearly capable of producing an unjust result." R. 2:10-2.
Principles of due process prohibit the use of identification evidence gathered by means "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968). New Jersey has "consistently followed the United States Supreme Court's analysis in determining the admissibility of out-of-court and in-court identifications." State v. Herrera, 187 N.J. 493, 504 (2006); accord State v. Adams, 194 N.J. 186, 201 (2008). Thus, the admissibility of identification evidence in New Jersey courts is governed by the two-pronged test of Manson v. Brathwaite, 432 U.S. 98, 110, 97 S.Ct. 2243, 2251, 53 L.Ed. 2d 140, 151 (1977). State v. Madison, 109 N.J. 223, 232 (1988).
Under the Manson two-pronged test, the court must first "ascertain whether the identification was impermissibly suggestive[.]" Herrera, supra, 187 N.J. at 503. The first prong asks "'whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" Adams, supra, 194 N.J. at 203 (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Under the second prong, the court determines "whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification."
Ibid. (quoting State v. Romero, 191 N.J. 59, 76 (2007)). Reliability is the "linchpin" of this inquiry. Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154; Adams, supra, 194 N.J. at 204.
Five factors set forth by the Court in Manson guide the trial court's discretion in determining reliability: (1) the witness's opportunity to observe the perpetrator at the time of the crime; (2) the degree to which the witness was paying attention to the perpetrator; (3) the accuracy of the witness's past descriptions of the perpetrator; (4) the witness's certainty in identifying defendant as the perpetrator at the time of the identification; (5) the amount of time elapsed between the crime and the identification. Adams, supra, 194 N.J. at 204. "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Ibid.
An in-court identification may be admissible even if the witness was subjected to an out-of-court identification procedure excluded as impermissibly suggestive and insufficiently reliable. Madison, supra, 109 N.J. at 242. If pretrial out-of-court identification procedures have been deemed impermissibly suggestive, the State must prove by clear and convincing evidence that a subsequent in-court identification has a "source independent of the police-conducted identification procedures." Id. at 245. The general rule is that
"[i]f . . . the out-of-court procedures were so impermissibly suggestive as to fix in the victim's mind an identity probably based upon photographs rather than upon an independent mental picture of the person gained from observations of him at the time of commission of the crime, the in-court identification should be excluded." [Id. at 242-43 (quoting State v. Thompson, 59 N.J. 396, 418-19 (1971)) (second alteration in original).]
Courts are to judge the independent reliability of the in-court identification by applying the five Manson factors. Id. at 243.
"[A] trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451). Thus, the trial court's findings that on the reliability of identification evidence "should not be disturbed if there is sufficient credible evidence in the record to support the findings." Ibid. Furthermore error or omission by the trial court will be disregarded by an appellate court unless it was "clearly capable of producing an unjust result[.]" R. 2:10-2. Stated in terms of its effect in a jury trial, the magnitude of the error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
In the present case, the trial court found that the out-of-court photographic showups of October 11 and 20 were impermissibly suggestive. The court did so upon a finding that Officer Kowalski, prior to viewing the October 11 photograph, was told that the person in the photograph was Alice Roberts. By that point, Officer Kowalski had already been told that other officers had positively identified the seller in the October 6 operation as "Alice Roberts." The court did not specifically address the circumstances of the October 20 photographic identification, but appears to have excluded the October 20 identification at least in part because it was an older photograph of lower quality.
The court noted that the presentation of defendant's photograph with a simultaneous verbal cue that the picture was of "Alice Roberts" was highly suggestive - or "almost directive." The court concluded that "to allow testimony regarding this so-called photographic identification when it really was a confirmation based on the directions of the officers I think would be unfair." That ruling has not been challenged by either party on appeal. The only contested issue is whether the trial court erred in determining that the out-of- court identification procedure did not taint Officer Kowalski's subsequent in-court identification.
To determine whether Officer Kowalski's subsequent in-court identification was so tainted by the impermissible photographic procedure so as to create a "substantial likelihood of . . . irreparable misidentification," the court addressed the Manson factors.
Addressing the first and second factors, the trial court found that although Officer Kowalski did not have "many many years of experience," she was a professional investigator "well trained" in the "field of identification." The court found that Officer Kowalski had a good opportunity to observe the person who sold her drugs because it was a "face-to-face transaction, not under circumstances involving violence or danger[,]" and where the two actors were only "feet apart" in an adequately lit area.
Addressing the third factor, the trial court found that Officer Kowalski was able to fairly and accurately describe the defendant in her police report prior to viewing the suggestive photograph. Apparently referring to the discrepancy in the description of the length and style of the perpetrator's hair, the court noted that the physical description in the police report was "not entirely accurate, but it fits [defendant] pretty well."
Addressing the fourth factor, the trial court found that Officer Kowalksi's hearing testimony, in which she expressed one-hundred percent certainty that defendant was the person who sold her drugs on October 6, was credible and truthful. The trial court did not address the fifth factor, under which the court is to factor into its reliability determination the amount of time between that elapsed between the crime and the identification. Based on the foregoing, the trial court permitted Officer Kowalski to identify defendant in court as the dealer who sold her cocaine on October 6 at the City Tavern.
On appeal, defendant first argues that "[t]he judge ignored critical aspects of Kowalski's testimony that cast doubt on her ability to accurately identify the seller." Defendant contends that the trial court's findings that Officer Kowalski was well trained in identification is contradicted by her relative inexperience; that the trial court's finding that Officer Kowalski had a good opportunity to view defendant is contradicted by the fact that the bar was "dim," the fact that Officer Kowalski admitted to being afraid, and the fact that the four-minute meeting was too brief; and that the trial court's finding that Officer Kowalski previously provided an accurate description is contradicted by the fact that aspects of the description in her police report conflicted with descriptions from other officers.
Defendant's first argument essentially urges us to make our own finding of reliability by applying the Manson factors to the facts in the record in a different manner than the trial court. We cannot conclude that the asserted errors in the trial court's reasoning demonstrate an absence of credible evidence in the record to support the trial court's finding of independent reliability to overcome the suggestiveness of the out-of-court identifications. Rather, it was appropriate for the trial court to place the most emphasis on the fact that Officer Kowalski was a trained investigator in a face-to-face meeting several minutes in length with a person she knew she would later have to identify. Given our limited standard of review, the trial court's reliability finding and decision to admit Officer Kowalski's in-court identification was within the bounds of the court's discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). The trial court's findings are "'entitled to considerable weight and should not be disturbed if supported by sufficient credible evidence,'" Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451), and should not be disturbed if supported by sufficient credible evidence.
Defendant's second and most extensive argument attacks the trial court's partial reliance on the fourth factor - the witness's level of certainty - primarily by citing to psychological and legal journals and a case decided by the Georgia Supreme Court, Brodes v. State, 614 S.E.2d 766, 771 (Ga. 2005) (noting that witness certainty had been removed from a list of reliability considerations in that state's jury instructions). The cited authorities do not specifically address witness certainty in the context of our State's Manson test and, in any event, are not binding on this tribunal. In support of the same argument, defendant also cites Romero to underscore that the New Jersey Supreme Court added language to the Model Jury Charge instructing jurors that when analyzing eyewitness testimony, "a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification." Supra, 191 N.J. at 76 (emphasis added). Clearly, the quoted language from Romero does not address witness confidence in the context of the Manson test. It applies where the witness's confidence in his own identification is the only indicator of reliability (not the case here) and where the jury is making a reliability determination (also not the case). Although the Supreme Court has signaled a willingness to reassess the Manson factors, see State v. Henderson, N.J. Supreme Court Order No. A-8-05, 2009 N.J. LEXIS 45 (Feb. 26, 2009), it has not yet done so. Accordingly, we reject defendant's second argument.
Third, defendant argues that the trial court inserted inappropriate criteria into the five-factor "totality of the circumstances" test by considering the circumstances of the whole case, and not "the totality of the circumstances surrounding the identification procedure," Herrera, supra, 187 N.J. at 506 (emphasis added). Here, defendant is correct: the trial court inappropriately based its determination of reliability in part on "coincidenc[es]" that it felt "reinforce[d] the identification." For example, the trial court found the identification was "reinforced" by the fact that the "other officers [knew] Alice Roberts." The trial court also found that the identification was reinforced by the fact that a subsequent call to Alice Roberts's cell phone number reached a woman named Alice who acknowledged that she had sold Officer Kowalski cocaine on October 6. The five-factor Manson test for reliability is limited to the circumstances surrounding the identification, ibid., and the trial court considered facts outside Officer Kowalski's identification. The trial court erred by doing so.
The critical question, however, is whether the trial court's error was "clearly capable of producing an unjust result." R. 2:10-2. It is clear that the trial court's consideration of circumstances beyond Officer Kowalski's identification was supplementary to its otherwise appropriate application of the five-factor Manson test for reliability and was not the determinative inquiry. As noted above, the fact that Officer Kowalski was a trained investigator who viewed defendant for several minutes in favorable visual conditions with the purpose of later identifying her amply supports the trial court's finding that her later identification was reliable.
We further note that even if Officer Kowalski's in-court identification was improperly admitted by the trial court, its admission was harmless. More than enough independent evidence was adduced at trial implicating defendant as the cocaine dealer named "Alice" at the City Tavern on October 6. As observed by the State, defendant was visually identified as the October 6 cocaine dealer in court by three other testifying police officers. Officer Alexander and Lieutenant Alvarez were seated within feet of Officer Kowalski in the City Tavern and each identified defendant as the seller. Detective Crowell, who already knew defendant from previous encounters, testified that he saw her walk into the City Tavern just before the drug deal took place and leave about five minutes later. These identifications were not challenged on appeal.*fn3
Beyond the other identification testimony and the coincidence of defendant and the October 6 drug dealer sharing the same first name, there is the further coincidence (established by way of the testimony of Officer Kowalski and Wendy Cromwell) that a telephone call on October 11 reached a woman named Alice, who acknowledged her role in the October 6 sale. According to Officer Kowalski, the voice she heard over the telephone was the same as that of the woman who sold her cocaine on October 6. Thus, even if one assumes that Officer Kowalski's identification testimony were improperly admitted, it would not have "led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
Defendant argues that she was denied her Sixth Amendment right of effective assistance of counsel when the trial court prevented defense counsel from commenting in his closing argument on the failure of the police to identify defendant by using a photographic array procedure. We disagree.
In New Jersey, a defendant's right to marshal a meaningful closing argument in his defense is constitutionally protected. State v. Briggs, 349 N.J. Super. 496, 500-01 (App. Div. 2002).
In Herring v. New York, the Supreme Court of the United States recognized that "a total denial of the opportunity for final argument in a criminal trial is a denial of the basic right of the accused to make his defense." 422 U.S. 853, 859, 95 S.Ct. 2550, 2554, 45 L.Ed. 2d 593, 598 (1997). In doing so, however, the Court also recognized the "broad discretion" of the trial court in controlling the scope of summations. Id. at 862, 95 S.Ct. at 2555, 45 L.Ed. 2d at 600. The Court stated that [t]he presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. [Ibid.]
In light of the fundamental importance of closing argument in criminal prosecutions, we have held that the failure of the trial court to allow defense counsel to explain in summations that defendant possessed a right to remain silent amounted to reversible error. State v. Nittolo 194 N.J. Super. 344, 347-48 (App. Div. 1984). Noting that the New Jersey Supreme Court had previously deemed a jury instruction regarding the right to remain silent "essential" to protect the right, we concluded that the same considerations demand that a trial court may not substantially bar a closing argument that explains the right to remain silent. Id. at 348.
More recently, in State v. Loyal, we found reversible error in the trial court's inclusion of a curative instruction that effectively neutralized a defense attorney's closing argument, which had asserted that the State's unexplained failure to present fingerprint evidence linking the defendant to the murder weapon gave rise to a reasonable doubt that the defendant had committed a murder. 386 N.J. Super. 162, 167-68, 175 (App. Div.), certif. denied, 188 N.J. 356 (2006). Noting that the issue was one of first impression in New Jersey, the court chose to adopt a rule from a case decided in the Maryland Court of Appeals. Id. at 173 (citing Eley v. State, 419 A.2d 384, 386 (Md. 1980) ("[W]here there is unexplained silence concerning a routine and reliable method of identification especially in a case where the identification testimony is at least subject to some question, it is within the scope of permissible argument to comment on this gap in the proof offered.")).
The Loyal panel, however, recognized that "the right to comment on fingerprint evidence is, of course, not without limits." Supra, 386 N.J. Super. at 173. In particular, the court noted that comments in summation must be based on evidence deduced at trial: "[W]ithout evidence to support the contention, defendant cannot argue that the failure to obtain fingerprints did not comply with good police practice, or that if fingerprints had been obtained, they would have exculpated defendant." Ibid. (emphasis added).
Indeed, it is well established that a trial court's discretion to control summations includes the ability to limit defense counsel "to fair comment on the evidence before the jury." State v. Reynolds, 41 N.J. 163, 176 (1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed. 2d 1050. It has been said that "[t]he scope of defendant's summation argument must not exceed the 'four corners of the evidence.'" State v. Loftin, 146 N.J. 295, 347 (1996) (quoting Reynolds, supra, 41 N.J. at 176). "Thus, it is proper for a trial court to preclude references in closing arguments to matters that have no basis in the evidence." State v. Jones, 308 N.J. Super. 174, 185 (App. Div.), certif. denied, 156 N.J. 380 (1998).
In the proceeding below, the purportedly erroneous sustained objection occurred in the following context. While arguing that the police investigation that resulted in defendant's arrest was inadequate, defense counsel stated that the police "didn't care anything about a photo array. Photo arrays are usually done. Lots of pictures are placed before you." When the State objected, the following exchange took place at sidebar between the court and defense counsel:
THE COURT [to defense counsel]: [A]s you know, I precluded any testimony regarding photographic identification of the defendant, so I really don't think it's fair for you now since I did this at your request to now, you know, comment about the lack of a photographic array.
[DEFENSE COUNSEL]: Okay. But you precluded my one picture and not of a photographic array particularly. No. I'll move on.
THE COURT: Do you think that's a fair comment or we are - you know, are we taking advantage of the Court's ruling here?
[DEFENSE COUNSEL]: I'll move on.
Defendant argues that pursuant to the logic of Herring, Nittolo, and Loyal, it was reversible error for the trial court to have prohibited defense counsel from comment on the absence of a photographic array procedure. We disagree. The trial court properly excluded defense counsel's intended closing arguments because they went beyond the scope of the evidence adduced at trial.
When the State objected, defense counsel was in the process of explaining to the jury that it is good police practice to conduct a photographic array. No evidence was ever adduced at trial to establish how or when police typically utilize a photographic array, or what harm might arise where there is a failure to utilize the technique. It would have been improper to have allowed defense counsel to testify as to the merits of such procedures in his closing argument. Jones, supra, 308 N.J. Super. at 185. We therefore find that the trial court's ruling was proper and does not amount to an abuse of discretion.
Defendant argues that the prosecutor's comments in summation improperly bolstered the credibility of police witnesses by stating that they would not lie to a jury, and sought to inflame the passions of the jury by stating that the police were "getting cocaine off the street." Though we find that some of the prosecutor's remarks were improper, we find that they were not capable of producing an unjust result and therefore do not warrant reversal.
Prosecutors are "expected to make vigorous and forceful closing arguments to juries" and are "afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999); accord State v. Bradshaw, 195 N.J. 493, 510 (2008). However, the primary obligation of a prosecutor is not to win a conviction, but rather to see that justice is done. State v. R.B., 183 N.J. 308, 332 (2005). Prosecutors are therefore bound to "'refrain from improper methods calculated to produce a wrongful conviction[.]'" Id. at 332 (quoting Frost, supra, 158 N.J. at 83).
Since no objections were made below regarding the prosecutor's summation, the plain error standard governs. Thus, defendant must show that the errors are "clearly capable of producing an unjust result." R. 2:10-2. The possibility of producing an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 47 N.J. at 336.
The statements challenged by defendant occurred in the following context. During defendant's closing argument, defense counsel challenged the truthfulness of the testifying police officers without explicitly stating that the police officers were not telling the truth:
What we saw in the courtroom these last couple of days I think it absolutely incredible, unbelievable to me observing it. Police officer after police officer after police officer came in here and identified [defendant].
You're all here to evaluate that testimony of those police officers and we've all heard - we've all heard about them - police officers filling in blanks and trying to get a conviction when all the work wasn't necessarily done. I would submit to you all that each of the police officers that came in here were fillers, fillers, trying to fill what wasn't done when it was supposed to be done.
Defense counsel also argued that the police officers were merely "parad[ing] a story that sounds good."
In response, the prosecutor told the jury in summation that in order to acquit defendant, they would have to believe that five people came before you and lied, intentionally lied . . . as to this defendant being the person who sold the cocaine on October 6th and again on October 11th. Bear in mind that while most of us are at home eating dinner, relaxing, watching the news, there are cops out on the street making buys, getting cocaine off the street. You heard this was seven o'clock.
By the time they wrapped up it was late.
Okay? We're relaxing and they're working.
Are they going to come before you and lie?
Defense counsel did not object to the prosecutor's comments when they were made.
Our first inquiry is whether the prosecutor's remarks were improper. We find that they were improper. In R.B., the prosecutor argued that because a detective had been assigned to a unit for only two months, he had no reason to lie. Id. at 331. The Court squarely held that "it is improper for a prosecutor to contend in summation that the police had no motive to lie." Id. at 331-32. Another panel of this court very recently addressed the same issue and held that a prosecutor's statement that an officer had "no stake in the outcome of the proceeding" was improper under the rule enunciated in R.B. State v. Murphy, 412 N.J. Super 553, 560 (2010). Because the prosecutor's comment in the case at bar stated that police, due to their dedication to the eradication of crime would not "come before you and lie" it is at least as inappropriate as the relatively innocuous comments deemed improper in R.B. and Murphy and is therefore improper. But a finding of impropriety does not end our inquiry. Ibid.
To warrant reversal, the appellate court must find that the improper comment denied the defendant a fair trial, considering the context in which it was made, ibid., and the trial record as a whole, State v. Nelson, 173 N.J. 417, 472 (2002). To determine whether the alleged prosecutorial misconduct requires a reversal of a conviction, however, the ultimate question is whether "the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. The court must "evaluate the prosecutor's comments in the context of the overall 'tenor of the trial' and 'degree of responsiveness of both counsel and the court to improprieties when they occurred[.]'" Murphy, supra, 412 N.J. Super at 560 (quoting R.B., supra, 183 N.J. at 332-33).
As noted by the Court in R.B., a three-part inquiry governs whether prosecutor's misconduct was sufficiently egregious to deprive defendant of a fair trial:
Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. [R.B., supra, 183 N.J. at 333 (quoting Frost, supra, 158 N.J. at 83-84) (emphasis added).]
Additionally, an otherwise improper remark may not constitute reversible error if made in direct response to an attack by defense counsel. State v. Engel, 249 N.J. Super. 336, 379 (App Div.), certif. denied, 130 N.J. 393 (1991). "A prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). We have applied that principle to hold that an otherwise improper prosecutorial summation arguing that the police had no motive to lie was not clearly capable of producing an unjust result because it was made in response to remarks suggesting that the police were lying. State v. Vasquez, 374 N.J. Super. 252, 261-62 (App. Div. 2005).
Defendant argues that the statement was prejudicial because the same type of comment constituted cause for reversal in Frost, supra, 158 N.J. at 85, and State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994). We find those two cases distinguishable.
In Frost, the Court found the prosecutor engaged in three separate inappropriate lines of argument - one line of argument suggesting that the police officers would not lie because of the magnitude of the potential charges against them for lying. Frost, supra, 158 N.J. at 85-87. The Court held that a single curative instruction was insufficient to overcome the cumulative effect of the multiple improper remarks. Id. at 87. Significantly, in R.B., the Court cautioned that Frost should not be read to stand for the proposition that a single prosecutorial comment that the police had no motive to lie constitutes reversible error. Supra, 183 N.J. at 331 n.4. According to the Court, Frost is better understood as a case in which improper bolstering of police witnesses was "part of a much larger mosaic of cumulative error warranting reversal." Ibid. No such "larger mosaic" exists in the present case.
Like the Frost decision, Goode is premised on a finding of "repeated improper comments" within a prosecutor's summation and throughout trial. Supra, 278 N.J. Super. at 92. In Frost, not only did the prosecutor state that it "would be a crime in addition to the crimes that occurred into this incident" not to believe the testifying detectives, who "had . . . nothing to gain by lying," id. at 91, he also improperly told the jurors that a guilty verdict was their "chance to make a difference" in the war on drugs, id. at 89, and incorrectly advised the jury that they should consider the defendant's prior crimes for more than assessing his credibility, id. at 91.
We are convinced that the comment was not prejudicial for several other reasons. First, we find it significant that the defense did not object to the comment when made. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Frost, supra, 158 N.J. at 83.
Second, pursuant to Vasquez, the prejudice of a comment bolstering police officer testimony may be lessened if made in direct response to defense counsel's attack on the truthfulness of the police. Supra, 374 N.J. Super. at 261-62. In Vasquez, we held that an otherwise improper prosecutorial comment arguing that the police had no motive to lie was not clearly capable of producing an unjust result because it was made in response to remarks suggesting that the police were lying. Ibid. Third, the inappropriate comment bolstering the credibility of the police officers was but one comment within an otherwise restrained and fair closing argument. Unlike the closing arguments that led to reversals in Frost and Goode, the prosecutor's summation in the present case did not contain multiple improper remarks.
Considering the prosecutor's summation as a whole and the entire trial record, defendant has not shown that the prosecutor's single improper remark raises a "reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 47 N.J. at 336.
Finally, we reject defendant's additional argument that the prosecutor's closing argument was an improper "call to arms" meant to inflame the passions of the jury. A prosecutor may not make "'inflammatory and highly emotional' appeals which have the capacity to defer the jury from a fair consideration of the evidence of guilt." State v. W.L., 292 N.J. Super. 100, 111 (App. Div. 1996) (quoting State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993)). Prosecutors are prohibited from making what are known as "call to arms" arguments, which "urg[e] juries to return convictions in order to protect the community and send a message to the criminals[.]" State v. Morais, 359 N.J. Super. 123, 132 (App. Div.), certif. denied, 177 N.J. 572 (2003); see also Hawk, supra, 327 N.J. Super. at 282. Such comments are prohibited because they "divert jurors' attention from the facts of the case, and promote a sense of partisanship with the jury that is incompatible with the jury's function," State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003) (citations omitted).
Defendant cites State v. Holmes, 255 N.J. Super. 248, 249 (App. Div. 1992), and Goode, supra, 278 N.J. Super. at 89-90 in support of her contention that the prosecutor's reference to police working late "getting cocaine off the streets" was an impermissible call to arms. In Holmes, the prosecutor was faulted for stating the following in his opening statement:
Who has the interest, who has motive, who would come before you and lie? That will probably be what you will have to decide and I ask that you observe the witnesses as they testify for you and use your common sense. You all understand the particular drug problem that we have in this country, particularly Newark and I submit to you, that the police officers don't have to make up facts. [Supra, 255 N.J. Super. at 249 (emphasis added).]
Then, in his closing statement, the prosecutor in Holmes added: "[w]ith the war on drugs, he [the police witness] didn't have to come before you and fabricate these type [sic] of cases. I submit to you he came before you and told you the truth." Id. at 249-50 (alterations in original). The Holmes court concluded that the prosecutor's reference to the particular drug problem in Newark and "the war on drugs" were "entirely irrelevant to the police witnesses' credibility" and that "the prosecutor's references were only a thinly-veiled attempt to inflame the jurors by identifying defendant with matters of public notoriety as to which no evidence was or could have been ever [sic] introduced." Id. at 251.
In Goode, the prosecutor told the jury the following:
When we started this case . . . I said to you you're going to be able to make a difference in your community. This is one situation where you can finally do something and say yes, drugs exist. I hate them . . . [.] But this time I can do something.
I can make a difference. To overlook the facts in this case and disregard the testimony of Detective Sumter and Detective Mejias would be a crime in addition to the crimes that occurred in this incident. They testified truthfully, forthrightly and had no axe to grind, nothing to gain by lying. [Supra, 278 N.J. Super. at 90.]
The Goode court reversed the defendant's conviction in part because of the prosecutor's statement to jurors that by convicting the defendant, they would be making a positive difference in their communities. Ibid. And as noted in the previous section, the Goode court premised its reversal on several errors, including that the prosecutor stated that to disbelieve the police "would be a crime," that the police had no motive to lie, that a prior offense committed by the defendant could be used as evidence of guilt, and that the jury should consider the fact that a search warrant was issued as evidence of guilt. Id. at 90-91.
When considered in context, the prosecutor's statement in the present case did not amount to an impermissible call to arms. The prosecutor never made reference to a "war on drugs" or a drug epidemic, like the prosecutor in Holmes, supra, 255 N.J. Super. at 249. Though the reference to the work habits of the police officers was an impermissible attempt to bolster the credibility of the officers, it was not intended to appeal to the jurors' sense of duty to remedy a larger societal problem or scourge in their own community. The prosecutor's comments did not even implicitly encourage the jury to consider how their decision would affect the world outside the courtroom.