September 30, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GOLDA HARRIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-00493.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Fuentes, Gilroy and Nugent.
A jury convicted defendant Golda Harris of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count four); two counts of third degree criminal mischief, N.J.S.A. 2C:17-3a (counts five and six); two counts of fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (counts seven and nine); and two counts of third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (counts eight and ten). The jury acquitted defendant of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one), and third degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count three).
On December 12, 2008, after appropriate mergers, the court sentenced defendant on count two to seven years imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to three years of parole supervision on release. The court imposed concurrent prison terms of three years on counts five, seven, nine and ten. The court also imposed appropriate fines and penalties. Defendant appeals from her convictions and sentence. We affirm.
According to the State's proofs, the events resulting in the charges against defendant occurred on December 31, 2006, and January 1, 2007. Defendant had been involved in a relationship with Linn Jones, who had stayed at her Plainfield residence for approximately two weeks before December 31, 2006. On that evening, Jones and defendant dined at a friend's home and returned to defendant's house about 11:30. Defendant went to bed and Jones drove to the Plainfield home of Maryann Pringle, his girlfriend, with whom he went to a New Year's Eve party.*fn1
While Jones and Pringle were at the party, Pringle's neighbors, Terance Johnson and Monique Blackman-Johnson, returned home at approximately 1:15 on the morning of January 1, 2007, after attending church and visiting Mr. Johnson's mother. They saw defendant drive into their cul-de-sac behind them, park her dark colored Ford Explorer, walk to where Jones had parked his PT Cruiser in front of Pringle's home, and begin smashing the car with a mallet. After smashing the lights and windows and removing papers from the glove compartment, defendant walked back to her Explorer, removed folded clothing, placed the clothing on the top of the PT Cruiser, and drove away. The Johnsons phoned the police, reported the incident, and provided the Explorer's license plate number.
In response to the Johnsons' call, Plainfield police officer Adam Green responded and observed the damage to the PT Cruiser: a broken windshield, broken windows on both sides of the car, broken tail lights, and body damage to the driver's door and passenger's side. Green ran the license plate provided by the Johnsons. The Explorer was registered to defendant.
Later that morning, after Pringle and Jones returned to Pringle's home and saw the damage to Jones' car, Jones called defendant and Pringle called the police. They soon observed headlights and went outside, Pringle stopping in the driveway next to her car. As she stood there, the headlights "started charging towards [her]." Pringle recognized the approaching vehicle as defendant's Explorer. Defendant drove the Explorer into the back of Pringle's car, a Nissan Altima, then backed up and accelerated forward, striking the rear of Pringle's car until it crashed through the garage door. After forcing the Altima through the garage door, defendant backed up and drove toward Jones, who was running across the lawn. Jones ran around a neighbor's minivan as defendant's Explorer struck it. According to Pringle, if Jones had not run around the minivan, defendant's vehicle would have hit him.
Defendant next drove across another neighbor's lawn and struck that neighbor's SUV. She drove away but returned shortly thereafter; was taken into custody by the police; and her vehicle was towed from the scene. According to the tow report, there was no damage to the windshield of defendant's Explorer.
Defendant recounted a different version of the events. She had permitted Jones to stay with her on the condition that he would not return to Pringle. Jones had also agreed to testify for defendant against Pringle in a municipal court matter. Defendant had filed a municipal court complaint against Pringle and could have included Jones as a defendant, because both Pringle and Jones had allegedly attempted to extort money from her, but she agreed not to charge Jones if he testified against Pringle. Defendant realized that Jones had reneged on both agreements when she saw his car parked in front of Pringle's house on January 1, 2007.
After waking during the early morning hours of January 1, 2007, defendant drove to her sister's house and then to a store. As she drove by the cul-de-sac where Pringle lived, she spotted Jones' PT Cruiser parked in front of Pringle's home. Realizing Jones had broken his agreements with her, she drove back to her house, retrieved his clothes, drove back to Pringle's house, and put his clothes on the top of his car. According to defendant, except for damage to the rear window that had existed before that morning, the Cruiser had no other damage. Defendant drove home, telephoned the Plainfield Police Department, and then drove to police headquarters to talk to an officer about how she could enforce Jones' agreement to testify in the municipal court case.
After returning home, defendant received a call from Jones about the damage to his car. Although she denied knowing anything about it, Jones and Pringle asked her to come over to settle things. She drove to Pringle's home, parked next to Jones' car, and began walking toward the door when Pringle came out, uttered an expletive, and started coming toward her with a long pole. Defendant retreated to her car and attempted to back up, but Pringle smashed her windshield with the pole. Defendant attempted to make a U-turn but ran into the back of Jones' car. As Pringle began striking the top of her car with the pole, breaking the sun roof, defendant's glasses flew off her face. She tried to drive away but accidentally struck Pringle's car, which hit the garage. Defendant attempted to reverse as Pringle continued to strike the Explorer, and then she put her car in drive and drove across the grass. Her Explorer slid and struck a neighbor's car. As defendant tried to escape, she struck another neighbor's car, but she was finally able to elude Pringle and drive away. She stopped on a nearby street, found her glasses, and then returned to Pringle's street to wait for the police and report that she had been attacked. The police arrived and she was subsequently arrested.
During cross-examination, the prosecutor attacked defendant's credibility by questioning her about the credibility of the State's proofs:
(BY PROSECUTOR) Is it a coincidence that all of the 911 calls indicate that the person who was putting the clothes on the car is the same exact person who was destroying the car? (DEFENDANT) No. I think that was done intentionally and contrived.
Q. So everyone is lying except you?
A. The -- the --Q. I asked you a question ma'am. Is everyone lying except for you, yes or no? (TRIAL COUNSEL) Who is -- who is everyone? (DEFENDANT) Yeah, who's --(PROSECUTOR) Are all of the witnesses you've heard who testified that you struck the vehicle, are they all lying except for you? (DEFENDANT) Oh, the two, Jones and Johnson, yes, they are lying. .... (PROSECUTOR) So all of the damage to the vehicle is from you -- your driving, being chased by Mrs. Pringle? (DEFENDANT) I only know what damage I did. Know that I -- I damage ran into the back of it (sic), I see the light is broke. I didn't notice that I broke it that night. But I'm not going to say I didn't. I did run into the back bumper, and I backed into the side of the car. That's the -- that I know I did.
Q. And the windshield?
A. No idea. Wasn't broken when I was there.
Q. Everyone is lying again?
A. You have to ask them.
Defendant did not object to the prosecutor's questions.
In his summation, the prosecutor commented:
You have here a situation where a case is built on testimony. We have one person come in, two persons come in, and then we have four people ultimately coming in and telling you what happened that day. We have independent physical evidence which corroborates it, the pictures.
We have [defendant] in her own admission putting herself in the location both times, both times I submit to you ladies and gentlemen, people who do well in terms of identity theft and lying always use a little bit of the truth, always use a little bit of truth because it makes it seem more credible. It gets mixed in.
Defendant interposed no objection to the prosecutor's comments.
The court charged the jury on Friday, September 26, 2008. The jury began deliberating the following Monday, September 29, 2008. The court had informed the jury during voir dire that the trial was anticipated to end by September 26, 2008. During deliberations on September 29, 2008, the jury requested to hear the testimony of Jones and the Johnsons. The court explained to counsel:
(TRIAL COURT) As you recall earlier, maybe about 11:30 or so, I'm estimating a little bit, the jury asked to hear back the testimony of Lynn [sic] Jones and Mr. and Mrs. Blackman-Johnson. A few minutes ago, they passed out this note: "We only need to hear the testimony of Lynn [sic] Jones and Mr. and Mrs. Blackman-Johnson to complete deliberations. Any timetable before you here, we would like to finish today."
The judge and parties subsequently learned that most of Jones' direct testimony had not been recorded. The court identified for the jury the part of Jones' testimony that had been recorded, and then explained to the jury:
We have that part of Mr. Lynn [sic] Jones's testimony, and then we have the other two people's testimony. I need you to let me know whether that would be sufficient for your purposes. If it's not sufficient for your purposes then you need to tell me that. So I'm going to ask you to go back into the room and write me a note.
The jury returned with a note stating that the available testimony would be sufficient.
The jury subsequently sent another note asking, "[i]s there a way to hear particular testimony from the three witnesses with regard to [the] particular incident of the Ford driving toward Mr. Lynn [sic] Jones?" The court responded:
The answer is yes. If you . . . send out a specific note telling me exactly, as specifically as you wish, what particular portion of the testimony you want to hear, we'll then identify it on the tape and just play those particular portions to you. . . .
So go back into the jury room and then write me out a note.
Before the jury returned its next note, the court and parties learned that the direct testimony of Terance Johnson had not been recorded. The court began discussing options with counsel. Defense counsel asserted that reading the testimony of only one of the three witnesses would unduly emphasize such testimony. When the court asked defense counsel if he was suggesting "they have to rely on their recollection," defense counsel replied, "I think so." Defense counsel later qualified his answer by saying the court should first explain to the jury that "we're down to only one, do they still want to hear just one."
The discussion among the court and counsel concerning Johnson's missing testimony started at 3:50 p.m. on September 29, 2008. At 4:00 p.m., the jury returned a note that it had reached a verdict. The court asked the jury foreman if the jury decided it no longer needed the playback. The jury foreman acknowledged such was the case, and that the jurors had continued deliberations and reached a unanimous verdict.
Defendant raises five points on appeal:
POINT I THE TRIAL COURT'S FAILURE TO [E]NSURE THAT THE COURT'S RECORDING SYSTEM WAS FUNCTIONING PROPERLY, AND THE TRIAL COURT'S FAILURE TO [E]NSURE THAT THE JURY'S VERDICT WAS UNIMPAIRED BY ITS SELF-IMPOSED DELIBERATION DEADLINE, VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY. U.S. CONST., AMEND V, VI, AND XIV; N.J. CONST., ART. I, ¶10 (RAISED IN PART BELOW)
POINT II THE DEFENDANT'S CONVICTIONS SHOULD
BE REVERSED BECAUSE THE PROSECUTOR REPEATEDLY ASKED THE DEFENDANT DURING CROSS-EXAMINATION IF THE STATE'S WITNESSES WERE "LYING" (NOT RAISED BELOW)
POINT III THE DEFENDANT'S RIGHT TO A FAIR
TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW)
POINT IV THE TRIAL COURT'S "CIRCUMSTANTIAL
EVIDENCE" INSTRUCTION WAS FLAWED AND UNDERMINED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT V THE [SEVEN] YEAR BASE CUSTODIAL
SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE AGGRAVATED ASSAULT ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S SENTENCING DISCRETION.
We begin with defendant's contention that she was deprived of a fair trial because the recording system malfunctioned and the jurors were unable to hear a playback of the testimony of two witnesses. We disagree.
Courts have broad discretion as to whether and how to conduct read-backs and playbacks. State v. Miller, 205 N.J. 109, 122 (2011). "Absent 'some unusual circumstance,' those requests should be granted." Id. at 119-20 (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). On the other hand, the rule is that where it is impossible to immediately respond to a jury's request during deliberations that certain testimony be read to it and the jury continues its deliberations and, before the testimony is read, reaches a verdict, there is no error in receiving the verdict and failing to read the testimony. In sum, where . . . the jury returns its verdict without waiting for or pressing its request for a reading of the testimony, it is evident that the jury no longer needed or desired to have its recollection refreshed by a reading of the testimony in order to reach its verdict. [DeBello v. DeBell, 163 N.J. Super. 305, 307 (App. Div. 1978).]
Here, unusual circumstances existed because part of the testimony was not recorded. More significantly, the jurors reached a verdict after being told that the specific testimony they required from all three witnesses was available and could be replayed, and before they were informed that the direct testimony of Terance Johnson was not recorded. The jury foreman confirmed that the jury had decided it no longer needed the playbacks, had continued with its deliberations, and had reached a unanimous verdict.*fn2
Defendant also argues that the trial court should have instructed the jury, before accepting the verdict, that the jury must not render a verdict coerced by its desire to complete deliberations that day. The defendant did not request such an instruction, nor did she object to the court taking the verdict. Because the defense neither requested the instruction nor objected to the court taking the verdict, we analyze the argument under a plain error standard. See R. 2:10-2. That standard dictates that "[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. Afanador, 151 N.J. 41, 54 (1997). Considering that the jury had deliberated for most of the day, and considering the foreman's representation that the jury had decided to forego the playback, had continued to deliberate and had reached a unanimous verdict, we do not find that the absence of the charge now suggested by defendant was clearly capable of producing an unjust result.
Defendant contends that the jury was coerced into reaching a verdict by its "self-imposed deadlines," the loss of trial testimony, and the prospect of having to return in three days to resume deliberations. We reject those arguments as based on speculation.
The jury had deliberated for nearly a full day, and had earlier informed the court that it only needed to hear the testimony of three witnesses before reaching a verdict. The jurors, according to the foreman, subsequently decided to forgo hearing the testimony, continued to deliberate, and reached a unanimous verdict.
Additionally, defendant's contention would require us to presume that the jury ignored the court's final instructions. Jurors are presumed to have followed the court's instructions. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004) (citing State v. Winter, 96 N.J. 640, 647 (1984)). Here, in its final charge, the court instructed the jurors that they were to "weigh the evidence calmly and without passion, prejudice or sympathy." The court explained that the verdict "must represent the considered judgment of each juror and must be unanimous as to each charge." Finally, the court cautioned the jury not to "surrender your honest conviction as to the weight or effect of evidence solely because of your fellow jurors' opinion or for the mere purpose of returning a verdict."
Defendant next contends that her conviction should be reversed because the prosecutor improperly asked her if the State's witnesses were lying, and implied in his summation that she was an identity thief and liar. Because defendant raises both issues for the first time on appeal, we review them under a plain error standard.
The prosecutor's cross-examination of defendant about State witnesses lying was improper. State v. Vandeweaghe, 351 N.J. Super. 467, 481-82 (App. Div. 2002), aff'd, 177 N.J. 229 (2003); State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). However, considering the cross-examination in the context of the five-day trial, and considering the overwhelming evidence against defendant, we do not find that the cross-examination was clearly capable of producing an unjust result. Cf. Green, supra, 318 N.J. Super. at 377-78 (finding that four instances of a prosecutor asking a defendant if police officers were telling the truth did not constitute plain error).
We reach the same conclusion concerning the prosecutor's comments in summation. 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).
In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. See State v. Bogen, 13 N.J. 137, 141-42 (1953).
If no objection is made, the remarks usually will not be deemed prejudicial. Id. [State v. Ramseur, 106 N.J. 123, 322-23 (1987).]
A defendant's failure to object to a prosecutor's closing remarks "suggests that defense counsel did not believe the remarks were prejudicial" and also "deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84.
Although we do not condone the prosecutor's comments, based on the evidence, the jury could have determined that defendant had engaged in half-truths. More significantly, defendant's testimony was contradicted by five witnesses, including the police officer who described the damage to the P.T. Cruiser. Considering the comments in the context of the entire summation, and considering that defendant did not object to them, we conclude that the comments did not deprive defendant of a fair trial.
Next, defendant argues that the trial court's preliminary charge on circumstantial evidence was flawed and undermined her right to a fair trial. She insists that because the court gave an example of circumstantial evidence in which the facts led inevitably to the conclusion the example was "biased towards conviction." Although the example may have indicated the end result, the instructions were only preliminary. In its final charge, the court explicitly instructed the jury that whether an inference from circumstantial evidence should be drawn was for the jury to decide, using the jurors' own common sense, knowledge, and everyday experience. The court also instructed the jurors to ask themselves if the inference is "probable, logical and reasonable." The court explained that both direct and circumstantial evidence should be scrutinized and evaluated carefully. Finally, the court instructed the jury that "a verdict of guilty may be based on direct evidence alone, circumstantial evidence alone, or a combination of direct evidence and circumstantial evidence," provided the evidence convinced the jurors of the defendant's guilt beyond a reasonable doubt; and that the opposite may be true, that is, "a defendant may be found not guilty by reason of direct evidence, circumstantial evidence, a combination of the two, or a lack of evidence, if it raises a reasonable doubt as to the defendant's guilt." We find no error in the court's charge.
Defendant raises as a final point that the seven year sentence imposed on defendant's aggravated assault conviction was excessive. A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive nor unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). In determining the appropriate sentence to be imposed, the sentencing court must consider statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987). "[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted).
Stated differently, when reviewing the sentence imposed by a trial court, we must determine first, whether the correct sentencing guidelines . . . [or] presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of the guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. [State v. Tindell, 417 N.J. Super. 530, 567 (App. Div. 2011) (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).]
Here, the trial court appropriately weighed the aggravating and mitigating factors, and sentenced defendant within the appropriate range for a second degree offense; the sentence does not shock our conscience. See Roth, supra, 95 N.J. at 364. Based on our review of the record and the transcript of the sentencing hearing, we discern no legal reason to interfere with the sentence imposed by the trial court.