The opinion of the court was delivered by: Justice Patterson
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized).
State v. Norman Jackson (A-131/132-10) (067869)
Argued March 13, 2012 -- Decided August 13, 2012
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court determines whether comments made by the prosecutor during summation require a mistrial. The Court also determines whether the evidence supports defendant's conviction for kidnapping under N.J.S.A. 2C:13-1(b).
Defendant Norman Jackson entered Murul Chowdhury's taxi through the front passenger door and demanded Chowdhury's money at gunpoint. Chowdhury handed over cash and his wallet. Defendant then ordered Chowdhury to drive him to a location blocks away. At gunpoint, Chowdhury drove defendant approximately eight-tenths of a mile. Defendant departed the taxi without injuring defendant and was arrested shortly thereafter. No weapon was found on defendant at the scene of his arrest. At police headquarters, Officer Wayne Bizzaro attempted to conduct a more thorough search of defendant, which triggered an altercation that injured defendant and revealed a concealed gun. That night, Officer Bizzaro drafted a false report that did not reveal the failure to locate defendant's gun at the scene of his arrest. Later that same night, Officer Bizzaro prepared and filed a second report that made clear that defendant's weapon was not recovered until after they returned to police headquarters. Before a grand jury, Officer Bizzaro testified falsely based on his initial fabricated report, which later prompted the State to dismiss the indictment. Officer Bizzaro was administratively suspended five days for his conduct. Defendant also filed a civil suit against Officer Bizzaro arising out of his altercation with defendant and his false grand jury testimony. Before a second grand jury, Officer Bizzaro testified based on the accurate police report. Defendant was indicted for first-degree robbery, N.J.S.A. 2C:15-1, second-degree kidnapping, N.J.S.A. 2C:13-1(b), and other charges.
At trial, during the testimony of the State's witnesses, references to extraneous proceedings were admitted without a defense objection, including Officer Bizzaro's testimony regarding the administrative and civil proceedings. Officer Bizzaro testified that he had been suspended for five days and that defendant was suing him for a million dollars. In its cross-examination of the State's witnesses, the defense focused on Officer Bizzaro's misconduct and suggested that defendant was misidentified as the perpetrator, that the police work was so flawed that it could not support a conviction, and that the officers planted the gun on defendant. Near the close of the prosecutor's summation, he commented that Officer Bizzaro lied about the gun recovery to avoid getting into trouble, not to frame an innocent man. He then ended his summation by discussing the extraneous proceedings. Although the prosecutor explained that those proceedings are not before the jury, the prosecutor stated that Officer Bizzaro "lost a week's pay" and is "being sued for a million dollars"; that "[m]aybe some of you will feel he deserves to be bankrupted for the rest of his life for what he did"; and that defendant "wants to be a millionaire." Defense counsel sought a mistrial, arguing that the jury had been misled into concluding that by acquitting defendant, he would be rewarded and become a millionaire. The trial court denied the motion for a mistrial, but gave a limiting instruction advising the jury that it should not consider that its verdict may impact the separate cases referenced during trial.
The jury convicted defendant of first-degree robbery, second-degree kidnapping, and other charges. Defendant appealed, claiming that the trial court should have granted his motion for a mistrial in the wake of the prosecutor's comments, and that the victim was neither transported a "substantial distance" nor confined for a "substantial period" under the kidnapping statute, N.J.S.A. 2C:13-1(b). The Appellate Division reversed defendant's kidnapping conviction, finding that the evidence did not support that conviction, and affirmed his other convictions. The Court granted the parties' cross-petitions for certification. 207 N.J. 228 (2011).
HELD: The trial court properly exercised its discretion when it denied defendant's motion for a mistrial because the prosecutor's improper comments did not deprive defendant of a fair trial. Defendant both transported the victim a "substantial distance" and confined him for a "substantial period" within the meaning of N.J.S.A. 2C:13-1(b).
1. Prosecutorial misconduct does not warrant reversal unless it is so egregious that it deprived the defendant of a fair trial. Prosecutorial comments are deemed to have violated the defendant's right to a fair trial when they so infect the trial with unfairness as to make the resulting conviction a denial of due process. Three factors guide the Court's assessment of the impact of improper prosecutorial remarks: (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. (pp. 15-18)
2. The statements made in the closing moments of the prosecutor's summation invoking extraneous proceedings were improper. However, defendant was afforded a fair trial notwithstanding those comments. The prosecutor's statements were fully grounded in evidence -- although extraneous -- that was admitted without objection, and they were responsive to a key defense theme, that the officers were motivated to misidentify defendant and had planted a gun on him. Moreover, it is extremely unlikely that the comments prompted jurors to convict defendant in order to forestall a civil judgment against Officer Bizzaro. The summation itself included comments noting that the issue of civil liability was not before the jury. Most significantly, the trial court directly addressed the issue with the jury, delivering a timely and effective limiting instruction. (pp. 18-24)
3. Defendant's conviction for second-degree kidnapping in violation of N.J.S.A. 2C:13-1(b) should not be disturbed on appeal unless it clearly appears that there was a miscarriage of justice. There is no miscarriage of justice when any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present. N.J.S.A. 2C:13-1(b) requires that a defendant either "unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found," or "unlawfully confines another for a substantial period." The Court cannot discern whether the jury based its verdict on the victim's removal by a "substantial distance" or his "substantial confinement"; therefore, it reviews both elements. (pp. 24-26)
4. In State v. Masino, 94 N.J. 436 (1983), the Court distinguished "substantial distance" from a "linear measurement" of the distance traveled and defined it as one that isolates the victim and exposes him or her to an increased risk of harm. In State v. Brent, 137 N.J. 107 (1994), the Court noted that although in many instances the movement accompanying a crime may be incidental to the underlying crime and therefore not within the ambit of the kidnapping statute, the movement can also constitute a separate danger that substantially increases the risk of harm to the victim. Thus, "substantial distance" requires analysis of the additional risk imposed on the victim, over and above the risk imposed by a separate crime, and the isolation experienced by the victim because of the defendant's actions. In State v. La France, 117 N.J. 583 (1990), the Court similarly held that "substantial confinement" must be more than incidental to the underlying crime, and that both the duration of the confinement and the enhanced risk of harm resulting from the confinement and the victim's isolation are relevant considerations. (pp. 26-31)
5. There was sufficient evidence to support the jury verdict with respect to both the "substantial distance" and "substantial confinement" elements of N.J.S.A. 2C:13-1(b). Defendant's constraints on his victim went beyond the acts that were necessary to accomplish the armed robbery. After the robbery, defendant forced Chowdhury drive him at gunpoint, which kept Chowdhury in an isolated and vulnerable position, and exposed him to an enhanced risk of harm. Defendant was exposed to the risk of a serious accident, injury or death by virtue of a desperate attempt to escape, or the danger of a confrontation between defendant and law enforcement. The "linear distance" traveled was considerable, but the increased risk of harm imposed on the victim was greater still. The same considerations support "substantial confinement." Although the robbery consumed a short span of time, Chowdhury was exposed to a substantially extended confinement and a substantially increased risk. (pp. 31-33)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and defendant's conviction is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and HOENS join in JUSTICE PATTERSON's opinion. JUDGE WEFING (temporarily assigned) did not participate.
On certification to the Superior Court, Appellate Division.
JUSTICE PATTERSON delivered the opinion of the Court. Stopped at a traffic light during an evening shift, taxi driver Murul Chowdhury was accosted by an uninvited passenger, defendant Norman Jackson. Defendant entered Chowdhury's taxi through the front passenger door, requested a ride, pointed a gun at the driver, and demanded the driver's money. Chowdhury complied, handing over cash and his wallet. Following defendant's orders, Chowdhury drove approximately eight-tenths of a mile with defendant threatening him with a gun. Defendant departed the vehicle without injuring the driver.
Defendant was swiftly arrested. No weapon was found on defendant during an initial pat-down search at the scene of his arrest, and unbeknownst to the arresting officers, defendant was still armed when he was transported to Paterson police headquarters in a police vehicle. At police headquarters, Officer Wayne Bizzaro attempted to conduct a more thorough search of defendant, triggering an altercation that injured defendant and revealing a gun concealed in defendant's underwear. Later that night, Officer Bizzaro drafted a false report that did not reveal the officers' failure to locate defendant's gun at the scene of his arrest. The officer then filed an accurate report of the circumstances of defendant's arrest. He was later subject to administrative discipline for his fabricated initial report.
Before a grand jury, Officer Bizzaro testified falsely based on his initial fabricated report of defendant's arrest, which prompted the State to dismiss the indictment. He later accurately described the arrest before a second grand jury, which indicted defendant for first-degree robbery, N.J.S.A. 2C:15-1, second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) or (2), and five other charges. Defendant filed a civil suit against Officer Bizzaro for damages allegedly sustained by virtue of the altercation between them and the police officer's false grand jury testimony.
Defendant was tried and convicted by a jury on eight counts of the indictment, including first-degree robbery and second-degree kidnapping. On appeal, defendant challenged his conviction on several grounds, two of which are in contention here. First, defendant contended that the trial court should have granted his motion for a mistrial in the wake of prosecutorial comments about defendant's civil suit and the administrative discipline imposed upon Officer Bizzaro. Second, defendant claimed that the second-degree kidnapping conviction was unsupported by the evidence presented at trial, because the victim was neither transported a "substantial distance" nor confined for a "substantial period," as required by N.J.S.A. 2C:13-1(b). The Appellate Division panel affirmed defendant's conviction and sentence in all but one respect; it agreed with defendant that the evidence did not support his conviction for kidnapping, and vacated his conviction for that offense. This Court granted the parties' cross-petitions for certification regarding those two issues.
We affirm in part and reverse in part the Appellate Division panel's decision. We concur with the panel that the trial court properly exercised its discretion when it denied defendant's motion for a mistrial. The prosecutor's comments during summation inappropriately touched upon two matters extraneous to the issues considered by the jury -- defendant's civil suit against Officer Bizzaro and the officer's administrative discipline. However, those comments referred to evidence that had been admitted during the course of the trial without a defense objection, responded to a defense argument and in one case, concerned evidence that had been elicited by the defense counsel. Moreover, the trial court instructed the jury not to consider other criminal or civil proceedings in its deliberations. Accordingly, we concur with the Appellate Division panel's judgment affirming the trial court's decision to deny a mistrial.
We reverse the panel's determination regarding the trial evidence supporting defendant's kidnapping conviction. We hold that the circumstances of this case support a factfinder's determination that defendant transported Chowdhury a "substantial distance" from the site of their initial encounter, or, in the alternative, that defendant unlawfully confined Chowdhury for a "substantial period," within the meaning of N.J.S.A. 2C:13-1(b). By forcing Chowdhury to drive through city streets at gunpoint, constrained from abandoning his taxi to summon assistance, defendant kept his victim in a state of isolation and vulnerability that was not merely incidental to the crime of armed robbery. Defendant imposed upon his victim a risk of harm that exceeded the risk of the robbery alone. Accordingly, the jury's determination that defendant violated N.J.S.A. 2C:13-1(b) found sufficient support in the trial evidence, and defendant's conviction for second-degree kidnapping is reinstated.
At about 8:30 p.m. on January 14, 2005, Chowdhury was driving his taxi through Paterson to pick up a customer.*fn1 He stopped at a light on River Street, and noticed defendant walking near the taxi. Without warning, defendant entered the taxi through the right front door, sat in the passenger seat, and requested a ride to Broadway, one of Paterson's major roads, several blocks south of the taxi's location. Chowdhury, citing his customer waiting for him, offered to take defendant to Broadway after picking up his customer, but defendant demanded twice more that he be driven to Broadway immediately. After the two men briefly argued, defendant pulled out a gun, cautioning Chowdhury to "look at this mother f****r." Defendant pointed the gun at Chowdhury's chest, and the driver acceded to his passenger's demands and drove in the direction of Broadway:
PROSECUTOR: When did you start driving? Was it before he pulled the gun ou[t], or after he pulled the gun out?
PROSECUTOR: Why did you start to drive? CHOWDHURY: Because he demanded to go to Broadway.
With his gun pointed at Chowdhury, defendant asked for money.*fn2
Chowdhury reached into his pocket and gave defendant sixty-five dollars, the fares he had collected that evening. Defendant then demanded Chowdhury's wallet and Chowdhury complied:
I give it to him, my wallet. He took the money. He give me my wallet back. Then he ask for it again, the wallet. Then he look everything, give it to me back. Then he say, oh, f*** it. This wallet, I have my fingerprint in there. So, I -- from my breath, and I like, wipe. Then he said, okay, put in your pocket. Then I put in my pocket.
Having taken the money, defendant then ordered Chowdhury to drive him through Paterson:
Then he say, okay, start driving. Still driving, then he said, okay, take me to Broadway. And I driving in Straight Street and make a left in like Broadway and Straight Street. Then when I cross the like,  Street, then he says, okay, pull up the car. Then I pull up. Then he say, okay. Don't drive, just park.
Chowdhury pulled the car over, and defendant left the car, instructing Chowdhury to drive away slowly. Based on the start and end locations testified to by Chowdhury, the total distance driven by Chowdhury with defendant in his taxi ...