October 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC GIBBS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0868-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 6, 2010
Before Judges Sapp-Peterson and Fasciale.
Defendant, Eric Gibbs, appeals from an August 29, 2008 judgment of conviction of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (Count One). He was acquitted of third-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Two). Defendant contends that (1) his counsel was ineffective because he failed to file a motion to suppress; (2) the trial judge abused his discretion by admitting into evidence two prior convictions; (3) the verdict was against the weight of the evidence; (4) there was prosecutorial misconduct; and (5) the judge imposed an excessive sentence. We affirm.
On February 3, 2007, a security guard at a public housing facility notified police to remove defendant from the property because he had been disorderly. At approximately 6:00 p.m., Officer Jose Gonzalez (Officer Gonzalez) arrived and was directed to an apartment on the eighth floor. Officer Gonzalez went to that apartment and defendant's mother told him that she had an argument with defendant but that he was not there. Officer Gonzalez told the security guard to call 911 if defendant returned.
Later, the guard called 911 and Officer Gonzalez returned to the facility around 11:00 p.m. Officer Gonzalez planned to escort defendant from the premises. Officer Charles Heintz (Officer Heintz) met Officer Gonzalez, and a guard directed them to a different apartment on the tenth floor. Both officers were wearing police uniforms.
Defendant's uncle opened the door and admitted that defendant was present. The officers explained that they were there to remove defendant because of the previous complaint of disorderly conduct. The uncle invited them into his apartment and the officers shouted for defendant to meet them in the living room, but defendant did not respond. The officers walked into a hallway, saw defendant sitting on a bed, and again repeated their request that he join them in the living room. They told defendant that security wanted him off the premises because he was causing problems with other tenants.
Defendant stood up, went into the living room, picked up a coat, put it down, went back into the bedroom, picked up a belt and placed it around his waist over the sweat pants he was wearing. He walked around aimlessly looking for things, screamed and yelled. Rather than leave with the officers, defendant sat down on a couch and started to put on his shoes slowly. After Officer Gonzalez asked defendant for identification, defendant pulled a wallet from his jacket and threw it at him. A photo identification was in the wallet but it had no date of birth, social security number, or license number on it.
Defendant then stood up and walked straight toward Officer Gonzalez within inches of his face. Officer Gonzalez pushed him back to create space and defendant assumed a "boxer stance" with clenched fists. Officer Gonzalez grabbed defendant's arm, took him down to the ground and arrested him. Both officers placed defendant in handcuffs.
As the officers escorted defendant out of the building, defendant yelled and screamed in the hallways. Officer Gonzalez searched defendant incident to the arrest and found in his right pocket a glassine tube and a folded piece of paper that contained cocaine.
Before the trial began, the judge conducted a Sands*fn1 hearing and determined that defendant's 1997 convictions for second-degree robbery and fourth-degree aggravated assault were admissible to impeach him if he testified. Defendant testified at the jury trial that he was not trespassing when he was arrested and that the cocaine and glass pipe were not his.
On August 29, 2008, the judge sentenced defendant to four years in prison on Count One and imposed the appropriate fines and penalties.
On appeal, defendant raises the following points:
DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY DEFENSE COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS EVIDENCE UNDER THE EXCLUSIONARY RULE BECAUSE THE ARREST WAS INVALID WHICH DENIED DEFENDANT EFFECTIVE ASSISTANCE OF COUNSEL. (Not raised below)
DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY THE COURT'S ERROR IN ADMITTING EVIDENCE OF PRIOR CONVICTIONS.
DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AS TO POSSESSION OF CDS. (Not raised below)
THE PROSECUTOR'S COMMENTS THAT WENT BEYOND THE FACTS PRESENTED TO THE JURY AND EXCEEDED THE BOUNDS OF FAIR COMMENT THUS DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not raised below)
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FOUR-YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We first turn to defendant's argument that the trial judge erred by admitting into evidence his two eleven-year-old prior convictions of second-degree robbery and fourth-degree aggravated assault. We disagree.
Our evidence rules govern the admissibility of prior convictions. "For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." N.J.R.E. 609. "The trial judge shall admit evidence of criminal convictions to affect credibility . . . unless . . . he finds that its probative force because of its remoteness, . . . is substantially outweighed so that its admission will create undue prejudice." Sands, supra, 76 N.J. at 147. If a prior crime is similar to the offense charged, then the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted. State v. Brunson, 132 N.J. 377, 394 (1993).
The determination of whether to admit into evidence a prior conviction rests within the sound discretion of the trial judge. Sands, supra, 76 N.J. at 144. The decision to admit a prior conviction will not be reversed unless the determination constitutes an abuse of discretion. Ibid.
Here, defendant was previously convicted of second-degree robbery and fourth-degree aggravated assault. Although these convictions occurred eleven years earlier, the offenses were serious. Ibid. at 144 (noting the seriousness of the prior conviction is a significant consideration for determining the admissibility of a prior conviction for impeachment purposes). Because the prior convictions involved crimes of violence, the trial court properly sanitized the convictions. We find no abuse of the court's sound discretion in admitting these convictions.
Defendant argues that the verdict was against the weight of the evidence because he was more credible than the police. He contends that he would not provoke a search by yelling and screaming if he had drugs on him.
Defendant failed to move for a new trial before the trial court. Generally, we will not consider an argument that a jury verdict is against the weight of the evidence unless a motion for a new trial was made before the trial court. State v. Scherzer, 301 N.J. Super. 363, 407 (App. Div. 1997). Rule 2:10-1 provides in pertinent part: "In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for new trial on that ground was made in the trial court." Ibid.
We adhere to this rule unless, in the interest of justice, we choose to do otherwise. Pressler, Current N.J. Court Rules, comment 3 on R. 2:10-1 (2007) (citing State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1992), certif. denied, 134 N.J. 476 (1993)). The interest of justice compels our intervention when we are convinced, under the plain error standard, that there has been an error or omission at the trial level that was clearly capable of producing an unjust result. See R. 2:10-2, see also Pressler, Current N.J. Court Rules, comment 3 on R. 2:10-1 (2007) (citing State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) for the proposition that Rule 2:10-1 is subject to plain error analysis as well). The possibility of 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." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant argues that it is not plausible for a person to be antagonistic with the police if he had drugs on him. This contention is essentially a challenge to the jury's credibility determinations. Officers Heintz and Gonzalez testified that the suspected drugs were recovered from sweatpants that defendant was wearing during their search of him incident to his arrest. At the time, defendant denied that the drugs belonged to him and accused the police of planting the drugs on him. At trial, however, defendant told the jury that the sweatpants he was wearing at the time of his arrest had earlier been worn by his girlfriend who had been "engaging in some unkind activities." The jury was free to reject defendant's testimony and to accept the testimony of the State's witnesses in this regard. Its credibility determination on this issue is entitled to our deference. See Dolson v. Anastasia, 55 N.J. 1, 7 (1969). See also State v. Feaster, 156 N.J. 1 (1998); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997); State v. Conway, 193 N.J. Super. 133, 151 (App. Div.), certif. denied, 97 N.J. 650 (1984). We discern no basis, in the interest of justice, to disturb that result.
Defendant contends that the following comments in summation by the assistant prosecutor constitute prosecutorial misconduct:
They have no reason to lie. They have no incentive. They have no bias against this defendant. They don't know anything about him. All they know is that they were dispatched to an apartment, they went there to locate someone that they had a complaint about.
The assistant prosecutor's comments were in direct response to the defense attack made on the credibility of the officers. In the same section of her closing, the assistant prosecutor said "the State would submit to you . . . [you have] the ability to listen [and use] common sense." She said "they found him, he was disruptive . . . he continuously obstructed [police instructions] . . . he continuously engaged [in] behavior that was combative, that was violent."
No objection was made to any of these comments. Pursuant to Rule 2:10-2:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
"Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Improper comments by a prosecutor require reversal when the prosecutor's misconduct is "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Nevertheless, a prosecutor is not precluded from making "a vigorous and forceful presentation of the State's case[.]" State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958). Moreover, prosecutors are given significant latitude in closing arguments and they may respond to arguments raised by defense counsel, "as long as their comments are reasonably related to the scope of the evidence presented." Frost, supra, 158 N.J. at 82. Here, the comments were not clearly capable of producing an unjust result or so egregious that it deprived defendant of a fair trial. Id. at 83.
We find that defendant's argument that his sentence was excessive is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
Regarding the claim of ineffective assistance of counsel, that argument is best reserved for presentation in a petition for post conviction relief. State v. Preciose, 129 N.J. 451, 459-60 (1992).