August 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN BAXTER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 06-11-0932 and 07-04-0231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Fuentes and Gilroy.
A jury found defendant guilty of first-degree robbery, N.J.S.A.
2C:15-1a(2) (count one); and of carjacking, N.J.S.A. 2C:15-2a(1)
(count two). On July 18, 2008, after finding
aggravating sentencing factors, N.J.S.A. 2C:44-1a(3), (6), and
(9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the
trial court sentenced defendant to two concurrent fifteen-year terms
of imprisonment, with an 85% period of parole ineligibility pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1
The court also sentenced defendant on an unrelated
fourth-degree conviction of aggravated assault, N.J.S.A.
2C:12-1b(5)(h), to a concurrent eighteen-month term of imprisonment.
The court imposed all appropriate fines and penalties.
On appeal, defendant argues:
IMPROPER SUMMATION REMARKS BY THE PROSECUTOR, URGING THAT THE INSANITY DEFENSE WAS UNDERMINED BY DEFENDANT'S INITIAL INVOCATION OF HIS RIGHT TO COUNSEL, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. 1947) ART. I, PARS. 1, 9, 10 (NOT RAISED BELOW).
We affirm and remand for the court to impose the mandatory five-year term of parole supervision upon release on defendant's first-degree NERA convictions.
On May 23, 2006, defendant walked into a bank in North Plainfield and handed a teller a note stating "[p]lease give me all your money or I'll shoot you dead." Upon the teller responding in the negative, defendant asked her if she wanted "to take that chance" while making a gesture under his jacket with his hand. Defendant told the teller "hurry up. I got a gun. I got a gun, hurry up, give me the money." Upon the teller again refusing to give him any money, defendant exited the bank followed by the bank manager and a customer. After his exit, defendant forced his way into an occupied motor vehicle parked near the bank. In doing so, defendant pulled a front passenger from her seat and threatened the driver by telling the driver he had a gun. Upon hearing defendant's threats, the driver took the keys out of the vehicle's ignition and opened the driver's door in an attempt to flee when defendant shoved the driver out of the vehicle onto the roadway. After failing to steal the vehicle, defendant fled into a nearby building where he was subsequently arrested by the police.
During processing at police headquarters, defendant provided the police with his medical and mental health history that included taking medication, using drugs, attempting suicide, and having been recently hospitalized with a bipolar disorder and depression, and his release from the hospital the day prior to the incident.
Before being questioned, the police detectives who were conducting the investigation advised defendant of his Miranda*fn2
warnings. Defendant waived his Miranda rights and signed a waiver form. In his initial interview, defendant confessed to handing the note to the teller, and the teller refusing to turn over any money to him. He also admitted that he had entered an occupied, parked motor vehicle in an attempt to steal it.
Upon being requested to provide a taped statement, defendant agreed. Defendant initially admitted during the taped interview that he had entered the bank and handed the teller the note because "[he] wanted some money, to get high." Upon making that statement, defendant informed the detectives that he wanted to discuss the matter with his attorney. Acknowledging defendant's request for counsel, the detectives concluded the taped interview at 12:33 p.m.
Several minutes after the taped interview ceased, defendant told the detectives "that he wanted to proceed with giving [them] a statement, because he wanted to take full responsibility [for] what had occurred . . . . He said he wanted to take full responsibility for the other women that were in the vehicle with him [who] had no idea he was going with the intention of robbing the bank." The detectives continued the taped interview at 12:44 p.m. Before asking defendant any further questions, the detectives re-advised defendant of his Miranda rights. Defendant waived his Miranda rights a second time. Upon doing so, defendant again confessed to committing both crimes. As to the robbery, defendant specifically admitted to handing the note to the bank teller threatening her with having a gun, although he only had a cell phone charger.
Prior to commencement of trial, the court conducted a Miranda hearing to determine the admissibility of defendant's confession. At the conclusion of the hearing, the court ruled that defendant's post-arrest statements to the police were admissible. After the court's decision, defense counsel requested that the entire transcribed statement of defendant's confession be admitted into evidence, including defendant's request for an attorney. The court acceded to counsel's request.
At trial, defendant raised the defenses of insanity and diminished capacity. According to defendant's expert at "the time of the incident in question [defendant] was suffering from a bipolar disorder aggravated by the stressors and aggravated with the use of the cocaine, with a mood disorder [and] the disturbance of thinking." The defense expert opined that "[t]he difficulties of impulse control and all this led to the greatly diminished capacity to appreciate what he was doing and control his impulses." The State's expert diagnosed defendant with substance abuse and malingering, not bipolar disorder. The State's expert found that defendant's statements, actions, and mental state were consistent with substance abuse, rather than bipolar disorder, insanity or diminished capacity.
During summation, the prosecutor commented on the statements defendant gave the police during the interview break:
But off tape he tells Detective Baldwin that part of the reason why he wants to do this without an attorney [is:] I want to take responsibility for my actions. I want to take responsibility for my actions. Pretty telling stuff in terms of his [mindset].
But then he says something else. Something to the effect, I didn't want others to get in trouble. Didn't want others to get in trouble. And you can see and feel through those words, as well as the words that he speaks on the tape, as to what his [mindset] is. He's weighing options, weighing decisions, weighing right and wrong, accepts what he's done as wrong, and knows what is right or wrong, and knows that he may, and he has an interest in protecting others.
Well, what does he have to protect them from if he does not understand the difference between right and wrong? And I know this may sound convoluted, but this is the core of the defense. And he couldn't understand the nature of his acts. And things that he says fly in the face of that. Fly directly in the face of that. And you don't have to believe anybody but his own words.
Defendant did not object to the prosecutor's comments at trial.
Defendant argues on appeal that the prosecutor improperly "urged that defendant's taped . . . statement, including his invocation of the right to counsel and subsequent decision to continue this statement without counsel, was inconsistent with the asserted mental state defenses of insanity and diminished capacity." Defendant contends that the prosecutor impermissibly invited the jury to infer guilt from defendant's request for an attorney. Defendant asserts that "this improper use of defendant's reliance of the right to counsel" caused defendant to be "deprived of [his] right to due process of law and a fair trial" in violation of the Federal and State Constitutions. We disagree.
Because defendant raises this argument for the first time on appeal, the plain error standard of review applies. R. 2:10-2; State v. Papasavvas, 163 N.J. 565, 626, corrected by 164 N.J. 553 (2000). The alleged summation error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it otherwise would not have reached. State v. Feal, 194 N.J. 293, 312 (2008).
"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). "[P]rosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations." State v. DiFrisco, 137 N.J. 434, 474 (1994). The prosecutor is granted wide latitude to make "fair comment" on the evidence so long as he or she stays within legitimate inferences that can be deduced from the evidence. See State v. R.B., 183 N.J. 308, 330 (2005). Notwithstanding, a prosecutor's arguments are not unfettered, State v. Williams, 113 N.J. 393, 447 (1988); indeed, the prosecutor has an obligation to see "that justice is fairly done." State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001).
The State violates a defendant's right to remain silent when the prosecutor attempts to impeach the defendant's trial testimony by asking the defendant on cross-examination why he or she had not explained his or her conduct at the time of arrest. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976); State v. Deatore, 70 N.J. 100, 115-17 (1976); State v. Pierce, 330 N.J. Super. 479, 492 (2000). "[I]t is fundamentally unfair to promise an arrested person that his silence will not be used against him and therefore to breach that promise by using the silence to impeach his trial testimony." Wainwright v. Greenfield, 474 U.S. 284, 292, 406 S. Ct. 634, 639, 88 L. Ed. 2d 623, 631 (1986). Nor, for the same reasons, where a defendant does not testify at trial, may the prosecutor comment on the defendant's failure to provide an explanation for the event charged at the time of arrest. State v. Muhammad, 182 N.J. 551, 562-64, 567 (2005); accord Tilghman, supra, 345 N.J. Super. at 576-77.
It is also unfair for a prosecutor to breach a promise to a defendant that he has a right to remain silent by using a defendant's post-arrest silence to "overcome a defendant's plea of insanity." Wainwright, supra, 474 U.S. at 292, 406 S. Ct. at 639, 88 L. Ed. 2d at 631; accord State v. Oglesby, 122 N.J. 522, 535 (1991) (holding "[t]he prosecutor must not suggest explicitly or implicitly that defendant's silence evidenced his sanity at the time of the homicide"). The same principle of fairness prohibits a prosecutor during summation of "inviting the jury to infer [a defendant's] guilt from the request for an attorney" as "that is plainly an infringement of [the] defendant's constitutional right to counsel." Tilghman, supra, 345 N.J. Super. at 577.
Here, contrary to Wainwright, Oglesby and Tilghman, the prosecutor did not argue that defendant's silence after receiving his Miranda warnings was evidence of defendant's sanity, nor could the prosecutor have so argued as defendant did not choose to remain silent. Defendant initially waived his constitutional rights to remain silent and to counsel, and confessed to having committed the crimes. It was only after defendant began to give a recorded statement that he told the police he would rather wait until he spoke to his attorney before finishing the statement. The police immediately stopped questioning defendant. After several minutes, defendant voluntarily explained to the police why he wanted to continue giving his recorded statement. He again waived his right to counsel and his right to remain silent, confessing to both crimes.
The prosecutor's comments did not touch upon defendant's right to remain silent or request for counsel. Rather, they only referenced defendant's explanation as to why he wanted to continue with his recorded statement. The prosecutor was free to comment on defendant's weighing of his options to either wait for counsel or to continue his recorded statement. The prosecutor's comments were fair; they did not rise to error, much less plain error.