June 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS E. URGENT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-08-1851.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2012 -
Before Judges Sabatino, Ashrafi and Fasciale.
After a jury trial, defendant appeals from his convictions for first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d. We conclude that the court's insufficient curative instruction regarding improper comments made by the assistant prosecutor in his summation suggesting that defendant had the burden of producing two witnesses constituted plain error warranting a new trial. We reverse and remand for a new trial.
It is undisputed that a perpetrator robbed the victim, a pedestrian in Atlantic City, and obtained $80. It is also uncontested that the police located defendant within a few blocks from the robbery, seized from him a knife and $80, and arrested him. Shortly thereafter, as defendant stood handcuffed on the street, the victim identified him as the robber. In his trial testimony, however, defendant provided an explanation for why he possessed $80 and a knife, and asserted that the victim had misidentified him.*fn1
In January 2011, the matter was tried over three days. The State produced testimony from the victim and three police officers. Defendant testified and produced one witness, Sean Wilson. The jury found defendant guilty on all charges, and the judge imposed an aggregate eighteen-year prison term with eighty-five percent parole ineligibility, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn2 This appeal followed.
On appeal, defendant raises the following points:
PROSECUTORIAL MISCONDUCT DURING SUMMATION UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF, AND WAS ONLY PARTIALLY ADDRESSED BY THE COURT'S CURATIVE INSTRUCTION. (Not Raised Below).
THE 18-YEAR SENTENCE, WITH AN 85% PAROLE DISQUALIFIER, IS EXCESSIVE BECAUSE THE NEED TO DETER COULD HAVE BEEN SATISFIED BY A LESSER SENTENCE.
Because we agree with defendant's contention that the curative instruction insufficiently addressed the improper remarks by the assistant prosecutor, we reverse the convictions and remand for a new trial. This conclusion makes it unnecessary to address defendant's remaining argument, that his sentence is excessive.*fn3
Defendant testified that on the night before the robbery, he and his girlfriend, Sharlene Hicks, slept in Wilson's apartment, which was located a few blocks away from the robbery. Defendant claimed that on the next day, Hicks gave him $120 to rent a room at the Ascot Hotel, located across the street from the apartment. He stated that he then walked to the Ascot to rent the room, but that, before he left Wilson's apartment, he took a kitchen knife with him intending to use it to open Wilson's malfunctioning apartment door lock when he returned.
Defendant testified that when he arrived at the hotel, he discovered that all of the rooms were booked. He stated that while he was there, he noticed that another friend of his, known as Dawg, had been renting a room at the hotel. Defendant claimed that Dawg agreed to share his room with defendant and Hicks in exchange for defendant splitting the cost. Defendant stated that he handed Dawg $40 from the $120, retained the remaining $80, and started walking back to Wilson's apartment to get Hicks. Defendant testified that the police arrested him as he walked back to Wilson's apartment from the Ascot Hotel.
Wilson testified that defendant and Hicks spent the night prior to the robbery at his apartment. Wilson stated that on the evening of the robbery he observed Hicks give defendant money and instruct defendant to "get her a room at the Ascot." Wilson further testified that defendant left with the money and a knife that belonged to Wilson, who stated that his apartment door lock was "malfunctioning" and that one needed to use "a credit card, a butter knife or steak knife, anything[,] . . . [to] pop the lock open."
In his summation, the assistant prosecutor stated:
The question I have also is where is Sharlene Hicks? She's not testifying. She didn't testify in this case. And again, the defendant is under no burden to provide witnesses, but when they're going to tell a story and they want this story, they want you to believe this story, it leads to believe that the people that were there, the people that can corroborate this story, they would call to testify. Where is she at? She was his boyfriend [sic] for about four to five months. Where is this man by the name of Dawg at who can specifically testify that [defendant] was at the Ascot Motel?
To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). All persons accused of crimes are guaranteed the right to a fair trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "[A] defendant has no obligation to establish his innocence." State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). "That applies with equal force to the situation of a defendant assuming the stand to testify and the situation of a defendant proffering affirmative evidence on his own behalf. He has no obligation to do either, and his failure in either regard cannot affect a jury's deliberations." Ibid. Here, the assistant prosecutor's comments were improper because they shifted the burden of proof to defendant and thereby deprived defendant of a fair trial.*fn4 Cf. Hill, supra, 199 N.J. at 569 n.9 (recognizing that "not all summation comment on a defendant's failure to produce a witness would produce the impermissible effect of lessening the State's burden of proof").
We recognize that the judge immediately interrupted*fn5
the assistant prosecutor's summation, conducted a side-bar
conference, and issued a curative instruction. That instruction,
however, was insufficient because it omitted reference to Dawg and
allowed the jury to draw a negative inference from Dawg's absence at
trial. In fact, during the side-bar conference, there was also no
mention of the comments regarding Dawg.
During the side-bar conference, the judge stated to the assistant
prosecutor, "You can't make those comments about where [Hicks is]."
The assistant prosecutor responded, "Actually, there's a charge . . .
," but she did not identify the charge to which she was referring. We
discern that the judge presumed the
assistant prosecutor was referring to a Clawans charge*fn6
because the judge stated that a request to charge a negative
inference must "be on notice," and that "[t]he court has to rule on .
. . whether the witness was within the control of the parties." See
Hill, supra, 199 N.J. at 560-61 (citing Clawans, supra, 38 N.J. at
172) (setting a "framework requiring prior notice" before permitting
jury to draw an adverse inference based on nonproduction of
witnesses). Defense counsel then explained to the judge that Hicks was
unavailable because she was "a fugitive from Massachusetts." The
following colloquy then occurred:
Assistant prosecutor: Do you want to give [the jury] a limiting instruction?*fn7
The court: I [have] to tell them to disregard [Hicks' whereabouts], and I'm going to tell them that they're not to surmise why she's not here[.]
The judge concluded the side-bar conference and gave the following charge, without objection, to the jury:
Ladies and gentleman, about this person that you heard, this Hicks woman, you're to disregard the comment about where she is or where she was during this trial. It's not relevant to this case. You're not to surmise why she's not here, why she hasn't been called by either side who, you know, both sides would have equal access to her, you're not to surmise about why she's here or wasn't here.
Furthermore, the argument that counsel made about her absence from trial is not to be considered by you in your determination of the facts of the case, so basically you disregard that last comment about her and anything about her, that's the easiest way to do it.
Now, what does this mean? You know, I've heard jurors say to me, well, you know, I hear something, it's hard to disregard it, that's true. But what I tell jurors is, is that you remember it when you deliberate and then you remember that I told you that you're not to consider it, so you don't consider the statement that was made about where she was or where she is, and you don't consider what she may have said or not said, she's not relevant to your determination of the ultimate issues in this case and, therefore, the comments about her are to be disregarded. [(Emphasis added).]
The judge did not state in his curative instruction that defendant is presumed innocent and the burden never shifts to defendant. The judge also did not explain why the absence of these witnesses was irrelevant and completely omitted any reference to Dawg.*fn8 Likewise, in his final charge, the judge stated:
Any testimony that I had reason to strike shall not enter into your deliberations such as the statement of counsel about [Hicks], and I told you that that's not relevant in this case as to why she was here or not here, and any inferences that you would draw from that statement would be put aside and not considered by you at all in deciding this case. You would just disregard the references to her, and to do otherwise would be inappropriate. That means, as I said, that even though you remember what was said, you remember that you're not to use it in your deliberations. [(Emphasis added).]
Clearly, the judge's instruction addressed only the assistant prosecutor's remark about Hicks, and stated one neutral singular and fifteen feminine singular pronouns and possessive adjectives.
It is well-settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J. 281, 287 (1981). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Wilbely, 63 N.J. 420, 422 (1973).
A flawed jury charge is a poor candidate for application of the harmless error rule. State v. Simon, 79 N.J. 191, 206 (1979). When a defendant fails to object to the alleged error at trial, we must apply the plain error standard of review. R. 2:10-2. Plain error is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant [and] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).
Here, we conclude that the failure to address the assistant prosecutor's comments regarding Dawg in the curative instruction, and later in the final charge, constituted error clearly capable of producing an unjust result. Ibid. Dawg was an important witness because he presumably might have corroborated defendant's testimony that defendant gave him $40, thereby leaving $80 on defendant's person. By not addressing Dawg in the curative instruction or final jury charge, the jury was permitted to infer from the assistant prosecutor's pointed comments that defendant had a burden to produce him as a witness, but did not because Dawg either did not exist or would not corroborate that defendant gave him $40. See State v. Burns, 192 N.J. 312, 335 (2007) (indicating that "[o]ne of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions"). The evidence was not so overwhelming in this case to enable us to disregard the error.
Reversed and remanded for a new trial.