May 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAROLD J. HOWELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-12-0919.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012
Before Judges Sabatino and Fasciale.
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1); and a disorderly persons offense of possession of a controlled dangerous substance, marijuana, N.J.S.A. 2C:35-10a(4). We affirm.
The State's proofs were as follows. At approximately 11:00 a.m., on July 29, 2008, police executed a search warrant at the residence of defendant, who was then living with his nineteen- year-old daughter.*fn1 After the S.W.A.T. team secured the premises, Detective Kenneth Martin informed defendant and his daughter that the police were executing the warrant to search for controlled dangerous substances. Detective Martin, who knew defendant from prior contact, showed defendant the search warrant, and defendant said, "Come on, Kenny, . . . I only got a little marijuana in here. I'll show you where it's at."
Defendant then led Detective Martin to his bedroom and pointed out the marijuana on a shelf attached to the bed's headboard. Investigator Mark A. Higginbottom proceeded to defendant's bedroom, where Detective Martin informed him that defendant was under arrest. As Investigator Higginbottom escorted defendant out of the bedroom, defendant said, "I'm going to lose my house and my job, can you help me[?]" Defendant then said, "[T]here's a little cocaine in my orange boot in my bedroom, Mark, help me out." Investigator Higginbottom returned to defendant's bedroom and informed Detective Martin what defendant had told him.
Detective Martin then located an orange Timberland-style boot on the bedroom floor near the closet and found a bag of cocaine inside the boot. Investigator Higginbottom found three more bags of cocaine inside a white Nike sneaker, and Investigator John Norton found a bag of cocaine on the top of a dresser in defendant's bedroom. Other officers found two items of drug paraphernalia in the same room.
Following his indictment, defendant moved to suppress the drug evidence, arguing that the police did not properly execute the search warrant. On July 27, 2009, the motion judge conducted a hearing. Defendant testified on his own behalf and presented testimony from his daughter. The State presented the testimony of five of the ten officers who participated in executing the search warrant.*fn2
Defendant and his daughter testified that the police had not knocked and announced their presence before entering. They testified that they were each in bed in their respective bedrooms when they heard the police enter, and that their dog began barking only after the police had already entered. The officers testified conversely that they banged on the front door while repeatedly yelling "police, search warrant," that the dog was barking, and that they waited fifteen to twenty seconds before ramming the door and entering.
The judge entered an order denying the motion, concluding in an oral opinion that the officers had executed the warrant with an appropriate knock and announce entry. See State v. Robinson, 200 N.J. 1, 13-14 (2009) (delineating knock and announce principles under New Jersey law). The judge stated:
It certainly seems much more plausible and believable that the dog, which is said to be extremely sensitive, would have heard the approach of ten sets of feet and started barking than not. However, [defendant and his daughter] indicated that the entry of the house occurred so quickly that the dog did not have an opportunity to bark. And, frankly, I find that not to be very credible. Each of the officers indicated that the dog was barking. The dog was located in the living room, which is located in the front of the house . . . . The officers testified they walked up the driveway, around the car, . . . through the walkway[,] and up to the door. That would certainly be right in front of the living room windows where the dog's cage was located.
The judge concluded that after announcing their presence, the officers waited fifteen to twenty seconds before entering, and that this was a reasonable period of time given the dog's barking and the opportunity of defendant to destroy evidence. The judge found that only one of the ten officers was responsible for determining when to enter, and that it was "very unlikely" that "each of these officers would have fabricated their testimony to cover up any failure to knock and announce."
Thus, the judge stated that "[g]iven the testimonies of [defendant and his daughter] and of the officers, I find that the officers' testimonies [are] far more credible, and, therefore, disbelieve the testimony of the [d]efendant and [his daughter]."
On March 30 and 31, 2010, a different judge conducted a jury trial. The State presented testimony from Detectives Martin and Douglas S. Osmundsen, and Investigators Higginbottom and Norton, and various exhibits, including the cocaine seized from the residence. Defendant did not testify or call any witnesses to testify. The jury returned a verdict of guilty on all charges, and the judge sentenced defendant to two concurrent three-year probationary terms. This appeal followed. On appeal, defendant raises the following points:
THE DEFENDANT'S RIGHT TO REMAIN SILENT AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION WAS VIOLATED WHEN THE PROSECUTOR, ON MULTIPLE OCCASIONS, DREW ADVERSE INFERENCES FROM THE DEFENDANT'S SILENCE AT TRIAL (Not Raised Below).
THE PROSECUTOR'S CONTENTION THAT THE DEFENDANT IS GUILTY BECAUSE THE POLICE HAD A SEARCH WARRANT "FOR YOUR HOME FOR YOUR ADDRESS" WAS UNDULY PREJUDICIAL (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE INDICATED [sic] THE DEFENDANT FOR THE COMMISSION OF A DISORDERLY PERSONS OFFENSE (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS INSTRUCTIONS ON THE LAW OF CONSTRUCTIVE POSSESSION (Not Raised Below).
THE DEFENDANT'S RIGHT TO A REASONABLE SEARCH AND SEIZURE AS GUARANTEED BY ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNREASONABLE MANNER IN WHICH THE POLICE EXECUTED THE SEARCH WARRANT.
We have considered the arguments made by defendant in Points II through V and have determined that they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We focus, however, on defendant's contention, raised for the first time on appeal, that the assistant prosecutor made two improper remarks in his closing statement to the jury warranting reversal and a new trial.
Because defendant did not object at trial to the prosecutor's remarks, we review this issue under the plain error standard. R. 2:10-2. We ask whether the remarks were improper, and, if so, whether they were "of such a nature as to have been clearly capable of producing an unjust result." Ibid. In this regard, our Supreme Court has stated:
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.
[State v. Frost, 158 N.J. 76, 83-84 (1999) (citation omitted).]
During his closing arguments, the assistant prosecutor told
[Detective Martin] testifies Investigator Higginbottom comes into the bedroom and he tells him, essentially, the [d]efendant admitted that he was in possession of cocaine, it's in the orange boot, somewhere in the bedroom. Seconds later, seconds later, after Investigator Higginbottom told [Detective] Martin that, [Detective] Martin picks up the orange Timberland shoe and he sees the cocaine in it. Not two minutes later, not five, not ten minutes later. And that couple seconds, I harp on it because it's critical, it goes to the credibility, the believability of what the [d]efendant told Investigator Higginbottom, that the cocaine was in the orange boot in the bedroom. Because as soon as it was told to [Detective] Martin, saw the boot, bam, picked up, there was no layover in time. He writes a police report a couple days later, documents what he sees. Everything in his report is true and accurate, I submit, there was no testimony that it was false. And just to let you know, you will get, I think, eleven things to take back to the jury room, some pictures, the drugs, the lab analysis.
You're not going to get the police reports. They're not permitted to be moved into evidence. . . . So, again, everything that [Detective] Martin testified to . . . . He was a calm, confident witness, sure of what he found, sure of what he heard, sure of what he saw, and that goes to credibility. No discrepancies, either on direct or cross, or contradictions with his police report. That goes to credibility.
Later, the assistant prosecutor stated that "there was no testimony [that] anybody else slept [in defendant's bedroom], except [the] daughter, which was, you know, referenced, but there was no testimony that [the daughter] had any involvement." Defendant now argues that these remarks "asked jurors to draw adverse inferences from this lack of testimony as substantive proof of [his] guilt," and "placed [him] in a position where he had to testify in order to avoid multiple adverse inferences." We disagree.
To be sure, federal constitutional principles prohibit a prosecutor from commenting on a defendant's decision not to testify. State v. Gosser, 50 N.J. 438, 452 (1967) (citing Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)), cert. denied, 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968). Thus, a prosecutor may not place a defendant "in a position where he must testify in order to avoid an adverse inference on the part of the jury." State v. Pickles, 46 N.J. 542, 579 (1966). In Pickles, for example, the prosecutor told the jury during his opening:
[I]n every criminal case, there is only one person that can furnish answers to some questions, and that is the defendant in every criminal case. I wasn't there and neither were you. If we were there probably would be no case, you see. It was the defendant only that was there and the defendant only can give us certain answers.
[Ibid. (alteration in original).]
The Court concluded that the remark was improper and had a "tendency to cut down on the scope of the accused's Fifth Amendment protection." Ibid. Here, we conclude that the prosecutor's remarks were not improper and do not constitute error, let alone plain error. The remarks are distinguishable from the improper remarks in Pickles and the other cases on which defendant relies.*fn3 The assistant prosecutor here did not direct his remarks at defendant or attempt to focus the jury's attention on defendant's decision not to testify.
The first remark, that "there was no testimony that [Detective Martin's report] was false," was fair comment on the accuracy of the report and the credibility of Detective Martin's testimony. In context, the assistant prosecutor was developing his point that there were "[n]o discrepancies, either on direct or cross, or contradictions with his police report."
Similarly, the second remark, that "there was no testimony that [the daughter] had any involvement," was also fair comment on the evidence. Neither statement implied that defendant had an affirmative responsibility to testify contrary to those reasonable inferences, or that defendant's testimony was the only testimony that could rebut the veracity of Detective Martin's report or the daughter's lack of involvement. Furthermore, we note that the judge instructed the jury, in the final charge:
You must not consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] did not testify. That fact should not enter into your deliberations or discussions in any manner at any time. . . . He is presumed innocent whether or not he chooses to testify.
The remarks complained of here are comparable to those in Gosser, supra, 50 N.J. at 452, where the prosecutor stated, in summation:
[T]here is no testimony that there was any other gun that belonged in that case. There was no other explanation as to why that case was leaning out of the closet like it was. There was no explanation as to why the shells were on that table in an open condition, no explanation.
There, the Court concluded that "the prosecutor's choice of words . . . amounted to nothing more than fair reference to legitimate inferences from non-production of evidence, which a prosecutor is entitled to make and which cannot be said to constitute comment on failure to take the stand." Id. at 453. The Court's observation that "[t]his kind of a question should not turn on mere semantics" is apt here, too. Ibid. Affirmed.