July 20, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALBERT J. DILTS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-05-0200.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2011
Before Judges Carchman and Waugh.
Defendant Albert Dilts appeals his conviction for first-degree armed robbery and related offenses, as well as the resulting sentence. We affirm the conviction for third-degree burglary and reverse the remaining convictions.
We discern the following facts and procedural history from the record.
Gurnam Chand worked at a Kwik Trip gas station in Phillipsburg. At approximately 10:15 p.m. on February 16, 2008, Chand was the only employee on duty. As he prepared to close the station, a man approached him. According to Chand, the man, later identified as Dilts, demanded money and flashed a five to six inch long knife. Dilts grabbed the man's "shoulder with one hand and [held] the knife in [his] other hand." After struggling for approximately thirty seconds, Chand broke free and ran to the opposite side of the station. When the man went into the attendants' booth,*fn1 Chand called 9-1-1 from his cell phone.
At the time of the incident, Timothy Cumer and his girlfriend had just arrived at his mother's house, located approximately 500 feet from the gas station. Cumer heard yelling and saw "[a man] and the gas attendant pushing and arguing back and forth." He then saw the man enter the attendants' booth. When the man came out, he ran towards a car parked across the street from Cumer, who ran towards the man in an "attempt to stop him." The man "pushed" past Cumer and got into the passenger side of a green Acura Legend, which drove away. Chand, who witnessed the encounter between Cumer and the man, wrote down the Acura's license plate number.
Cumer ran back to his car. He and his girlfriend "gave chase" to the Acura.*fn2 When Cumer caught up with the vehicle, his girlfriend called 9-1-1 to provide the police with its description. Shortly thereafter, police officers from Phillipsburg and Greenwich Township stopped the Acura, which had two occupants. Dilts was the passenger, and Dorothy Elliot was the driver.*fn3 The license plate number on the Acura matched the number written down by Chand and by Cumer's girlfriend.
Cumer remained at the scene of the stop. He identified Dilts as the "same person that [he] confronted just across the street from [his] mom's house." Chand subsequently told police that Dilts "seemed like" the person who had attacked him.
In May 2008, a Warren County grand jury indicted Dilts for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1(a)(2) (count one); second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(1) (count two); third-degree attempted theft from a person, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3 (count three); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count five); third-degree burglary, contrary to N.J.S.A. 2C:18-2(a) (count six); and fourth-degree possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7(a) (count seven) (collectively, the first indictment).*fn4
The first six counts of the first indictment were tried before a jury over four days in April 2009. The jury found Dilts guilty of first-degree armed robbery, third-degree burglary, and the weapons offenses charged in counts four and five. It did not consider counts two and three, which charged lesser included offenses related to the first-degree robbery charged in count one. The same jury was subsequently asked to consider count seven, possession of a weapon by certain persons. It returned a verdict of guilty.
Dilts was sentenced on August 7, 2009. The judge imposed a sentence of incarceration for eighteen years on the first-degree armed robbery conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Shorter sentences on the other charges, after required mergers, ran concurrent to the armed robbery sentence.
Although Dilts's notice of appeal was untimely, we granted leave to file as within time.
Dilts raises the following issues on appeal:
POINT I: THE PROSECUTOR'S COMMENT IN SUMMATION THAT "EVERYBODY KNOWS ALBERT DID THIS," INCLUDING DEFENSE COUNSEL, WAS PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. 1, Pars. 1 and 10. (Not Raised Below).
POINT II: THE JURY CHARGE ON ARMED ROBBERY WAS ERRONEOUS IN THAT IT ALLOWED THE JURY TO CONVICT ON A THEORY NOT SET FORTH IN THE INDICTMENT. U.S. Const. Amends. V, VI, XIV; N.J. Const. (1947), Art. I, Pars. 1, 8, 9, and 10.
POINT III: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
We address only the first issue, which is related to the State's closing argument. Because we reverse the armed robbery and weapons convictions on the basis of that issue, we do not reach the remaining issues.
Dilts's trial counsel did not object to the State's closing, so we must consider his argument that the prosecutor engaged in misconduct during summation under the plain error rule. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "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)(alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred. 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.
[Ibid. (internal quotation marks and citations omitted).]
See also State v. R.B., 183 N.J. 308, 332-33 (2005) (quoting the Frost criteria).
A prosecutor's alleged "misconduct must be viewed in the context of [the entire] trial." State v. Ramseur, 106 N.J. 123, 323 (1987). The evidence that Dilts was the man at the gas station was very strong. Our reading of the transcript leads us to conclude that Dilts's trial strategy was addressed to the sentencing differences between a first and second-degree robbery conviction. Although the indictment charged Dilts with possession of a specific knife, "a black handled steak knife," only one witness, Chand, testified that Dilts had a knife. He testified that he was "90 percent sure" that the knife found at the scene was the knife he had seen in Dilts's hand. A surveillance video was apparently inconclusive with respect to possession of a knife, and Cumer did not see a knife. No fingerprints were recovered from the knife.
The prosecutor was sufficiently concerned about the proofs related to the knife that he requested that the trial judge change his draft charge so that the jury would be able to convict Dilts of first-degree robbery, and the related weapons offenses, if he possessed any weapon, rather than just the specific knife that was the only weapon mentioned in the indictment. Over the strenuous objection of defense counsel, and some apparent reluctance on his own part, the trial judge eventually agreed to do so.*fn5
The thrust of defense counsel's summation with respect to the charge of armed robbery was his assertion that the State had not established that the knife recovered from the gas station was "the deadly weapon" necessary for a first-degree armed robbery conviction.
In order to establish an armed robbery, you need to establish that the person is armed with, or uses or threatens the immediate use of a deadly weapon. So did the State meet its burden beyond a reasonable doubt with respect to the issue of armed robbery? They didn't. There are too many questions about the knife, the physical evidence, where it was located, how did it get there. The absence of fingerprints, the failure of anyone to see the alleged knife except for Mr. Chand. And Mr. Chand when presented with the knife . . . indicate[d] [he was] about 90 percent sure, not 100 percent sure, he's about 90 percent sure. And under all of those circumstances, with all of these factors with where the knife is located, with the condition of the knife, all of these factors show that the State has failed to meet its burden. And that video evidence that you see and the photographic evidence that you see, I would submit take a look at it and see whether that convinces you beyond a reasonable doubt that what is in the possession of the alleged assailant is a knife. I would submit that it does not prove that and that the State cannot establish.
In response, the prosecutor stressed Dilts's obvious guilt, which in itself is not improper. However, the prosecutor went further. Immediately after referring to defense counsel, the prosecutor suggested that "[e]verybody" knew that Dilts "did this."
When you listen to [defense counsel], as I said, you read between the lines. There is no question. Everybody knows [defendant] did this. And I say this with all due respect to counsel, but why is he focused on the knife? The focus on the knife is because if he doesn't have a knife, he's not guilty of armed robbery. I submit to you that the evidence is overwhelming that this was an armed robbery and he should be held accountable for the crimes he committed.
The reference to defense counsel and reading "between the lines" immediately before and after the assertion that "everybody" knew Dilts was guilty leads to the ineluctable conclusion that the prosecutor was suggesting to the jury that defense counsel knew his client was guilty.
Although a prosecutor "may strike hard blows" during his summation, "he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935). We have concluded that the prosecutor's statements, which clearly implied that defense counsel knew his client was guilty, extended beyond the leeway generally afforded to counsel in closing argument.
In the context outlined above, the prosecutor's statements were also "unjustified aspersions" on defense counsel, whom he criticized for focusing on the knife when "everybody knew" Dilts was guilty. State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991); see also Frost, supra, 158 N.J. at 86 ("Defense counsel should not be subjected to disparaging remarks for simply doing his or her job.").
Although it is ordinarily "fair to infer" from failure to object that "in the context of the trial the error was actually of no moment," State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002) (internal quotation marks omitted)), we have concluded that it would not be fair to do so in this case. Defense counsel could not request the judge to instruct the jury that he did not know his client was guilty. Counsel may well have decided that it was better not to seek an instruction that his knowledge of his client's guilt or innocence was irrelevant or simply that it was best to avoid highlighting the issue inasmuch as the prosecutor did not return to it. In addition, in State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied sub nom., Thornton v. New Jersey, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963), the Court observed that "whenever a prosecutor exceeds the bounds of propriety or fair play in his summation, the trial court should intervene decisively whether or not an objection is made by the defendant."
In order for prosecutorial misconduct to justify reversal, the misconduct "must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Smith, 167 N.J. 158, 182 (2001). Although there may have been overwhelming evidence that Dilts was guilty of robbery, the State was, as we have already noted, concerned about its ability to prove possession of the knife so that the jury would convict Dilts of first-degree robbery.*fn6 The prosecutor's inappropriate conduct was specifically addressed to that offense.
Consequently, we conclude that a reversal is necessary with respect to the conviction for first-degree robbery. Because of their relationship to the issue of the knife that was the focus of the summations discussed above, as well as the last-minute decision to charge the jury with respect to weapons other than the knife alleged in the indictment, we also reverse the convictions on the weapons offenses.
However, we affirm the conviction for third-degree burglary (count six), which did not involve a weapon. We conclude that the overwhelming nature of the evidence that Dilts was the man at the gas station outweighs any residual prejudice from the prosecutor's statements concerning the knife and the first-degree robbery.
We remand for resentencing on the burglary count and a new trial on the reversed charges, including the lesser-included offenses not reached by the jury. The State may move to amend the indictment to expand its scope to include weapons other than the specific knife mentioned in the indictment.
Reversed in part, affirmed in part, and remanded.