October 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE GILLIARD, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3661.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Parrillo, Sabatino and Fasciale.
Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7).*fn1 We affirm the drug-related conviction, reverse the aggravated assault convictions, and remand for re- sentencing.
In September 2008, Officer William Gatling and his partner Officer Dannie Young conducted surveillance for illegal drug activity in a residential neighborhood. As they were parked in an unmarked police car, the officers observed a white Nissan 350Z driven by defendant stopped in the middle of the street approximately four or five houses away from them. Defendant was alone in the Nissan.
Officer Gatling used binoculars, noticed a pedestrian approach the passenger side of the Nissan from the sidewalk, and observed the pedestrian hand defendant money. Defendant then reached into a black plastic bag in the Nissan, pulled out an item, and handed the item to him. Although neither officer was able to identify the object, they concluded that a drug transaction occurred and radioed nearby officers regarding their observations.
The Nissan remained still for thirty seconds to a minute before defendant drove away. Officers Gatling and Young attempted to follow the Nissan by staying far enough behind it to avoid detection. Although they lost sight of the Nissan temporarily, the officers sped up and located it near an intersection. As the officers drove closer to the Nissan, they observed defendant increase his speed from twenty-five miles per hour to approximately fifty-miles per hour, speed through the intersection ignoring a stop sign, and collide with another vehicle, injuring its two female occupants. The impact deployed the airbags in both vehicles.
Officers Gatling and Young arrived at the scene of the accident within five to ten seconds. Officer Gatling attended to the two injured women and Officer Young attempted to aid defendant by assisting him to climb out of the Nissan passenger window. A firefighter extricated the women by removing the doors from the car, and then an ambulance transported them to the hospital.*fn2 Thereafter, Officer Gatling joined Officer Young.
As he assisted defendant in removing himself from the Nissan, Officer Young observed several small packets he believed to be heroin scattered on the floor of the front passenger's side. Officers Gatling and Young then noticed eleven bricks of heroin wrapped in magazine paper on the Nissan's floor. Defendant stated to the officers, "I have drugs in my car." Officer Young arrested defendant and searched his person and the Nissan. He seized a black plastic bag containing sixty-one bricks of heroin from the Nissan and $410 from defendant.
The judge conducted the trial on four days from March 30 to April 6, 2010. The State produced testimony from Officers Gatling and Young, the two injured women, and Reginald Holloway, a forensic narcotics expert. Defendant testified on his own behalf. The jury found defendant guilty of the drug and aggravated assault charges, and the judge imposed an aggregate eight-year prison term.*fn3 This appeal followed. On appeal, defendant raises the following points:
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 JURY INSTRUCTION AUTHORIZING THE JURY TO CONVICT THE DEFENDANT FOR AGGRAVATED ASSAULT BASED ON PURPOSELY OR KNOWINGLY CAUSING SIGNIFICANT BODILY INJURY OR ATTEMPTING TO CAUSE SIGNIFICANT BODILY INJURY, EVEN THOUGH THERE WAS NO SUPPORTING EVIDENCE IN THE RECORD AND THE STATE PROCEEDED ON A THEORY OF RECKLESSNESS.
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 FAILURE TO INSTRUCT THE JURY ON THE LAW OF CAUSATION EVEN THOUGH CAUSATION WAS CENTRAL TO THE CASE. (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 STATE'S FAILURE TO SHOW THAT ITS LAY WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (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 PROSECUTOR INJECTED HER PERSONAL OPINION INTO THE CASE ABOUT WHICH WITNESSES WERE CREDIBLE IN A CREDIBILITY CASE. (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 FAILURE TO INSTRUCT JURORS ON THE INTERTWINING ROLE OF THE STATE'S EXPERT WITNESS WHO GAVE FACT TESTIMONY. (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 INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION. (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 ACCUMULATION OF TRIAL ERRORS. (PARTIALLY RAISED BELOW).
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES
B. THE TRIAL COURT ERRED BY IMPOSING
We begin by addressing defendant's contention that the judge erred by charging the jury that he could be found guilty of aggravated assault by acting purposely or knowingly, as opposed to recklessly. Defendant argues that there is no evidential support for such a charge. Rather, he maintains that the judge failed to tailor the charge to fit the evidence and the State's theory, i.e., that defendant is guilty of aggravated assault for causing significant bodily injury to the two women because he acted "recklessly under circumstances manifesting extreme indifference to the value of human life." We agree.
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. Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J. 420, 422 (1973). When a defendant fails to object to the alleged error at trial, we must apply the plain error standard of review. State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied sub nom. Wakefield v. New Jersey, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Because defendant did not object to the charge, we must determine whether any error contributed to an unjust and unwarranted result. Id. at 471; R. 2:10-2.
The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." Reddish, supra, 181 N.J. at 613. Although the plain error standard of Rule 2:10-2 applies to our review of the charge, we must assure that a defect in the charge was not apt to have been consequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take," the conviction is to be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).
It is undisputed that the parties focused on defendant's recklessness, not purposeful or knowing conduct. The assistant prosecutor argued in her summation that defendant acted recklessly, manifesting an extreme indifference to the value of human life by ignoring the stop sign and traveling fifty-miles per hour through a busy intersection. Defense counsel maintained that the collision was a "traffic accident." Officers Gatling and Young testified that as they caught up with the Nissan it doubled its speed through the intersection. Defendant testified that he was familiar with the intersection, he slowed down to five miles per hour at the stop sign because his vision was obstructed by a truck, and then he stepped on the gas pedal. There is no evidence that defendant caused significant bodily injury to the two women by acting purposely or knowingly.
After the State rested, defense counsel moved for a judgment of acquittal*fn4 on the purposely-or-knowingly aspect of the aggravated assault charge. The assistant prosecutor stated that
[i]f the [c]court would want to consider how to word the jury charge in light of the evidence presented to the jury[,] that's for the charging conference. But the [c]court can't dismiss counts with regard to purposeful and knowing because they're charged under the statute. The statute includes provisions for all three. It might be an issue to take up at the charge conference if the [c]court wants to consider it. I think that the jury . . . will be able to ferret out, as we all are, that we're talking about recklessness [not purposeful or knowing conduct].
The judge denied defendant's motion and in his final charge included all three mental states. He charged the jury that the State must prove beyond a reasonable doubt that defendant acted "purposefully or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life." (Emphasis added). Thereafter, the judge defined for the jury "purposely and knowingly." Charging the jury on purposeful or knowing conduct, concepts that have no place in this case, constituted plain error because it allowed the jury to convict defendant based on a mental state for which there was no evidential support.
Further compounding the harmful effect, the judge did not provide the jury with a separate charge on causation. "'[C]ausation' is a term of art, the meaning of which varies with the mental state of the actor." State v. Martin, 119 N.J. 2, 11 (1990) (quoting N.J.S.A. 2C:2-3b). Properly explaining causation "is essential if the jury is to apply the dispositive legal principles to the facts." Id. at 18. "Otherwise, the jury may not be able to evaluate the facts under the appropriate legal standard . . . ." Ibid. Regarding "purposely or knowingly" causing an event, N.J.S.A. 2C:2-3b states that the actual result must be within the design or contemplation, as the case may be, of the actor, or, if not, the actual result must involve the same kind of injury or harm as that designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.
Regarding "recklessly," N.J.S.A. 2C:2-3c provides a materially different definition of causation: the actual result must be within the risk of which the actor is aware or, in the case of criminal negligence, of which he should be aware, or, if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense. [(Emphasis added).]
On remand, if the parties' aggravated assault theories remain the same, we direct the judge to address causation in the final charge in a manner that utilizes the appropriate definition in either N.J.S.A. 2C:2-3b or N.J.S.A. 2C:2-3c.
We reject defendant's argument that the judge instructed the jury on constructive possession erroneously. Defendant contends that the judge omitted in his charge that constructive possession "requires intentional control over an item, not merely the ability to exercise intentional control." The judge read the model jury charge on constructive possession, and stated that Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to exercise intentional control or dominion over it.
So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly of through another person or persons, is then in constructive possession of that item.
Defense counsel did not object to this charge and we conclude that there was no error, let alone plain error. R. 2:10-2; see State v. R.B., 183 N.J. 308, 325 (2005) (indicating that "insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury"). Here, the constructive possession charge matched the model jury charge and there is insufficient reason to modify it. In particular, the charge appropriately mentioned not only the actor's "power," i.e., his ability, to exercise control over an item, but also his intention to exercise such control.
Defendant argues for the first time on appeal that Officer Young, a fact witness, provided improper expert testimony that "we [Officers Young and Gatling] believed that a drug transaction was in progress." In the context of a drug distribution scheme, the New Jersey Supreme Court acknowledged "the boundary line that separates factual testimony by police officers from permissible expert opinion testimony." State v. McLean, 205 N.J. 438, 460 (2011). Recognizing certain extant and general principles of law, Justice Hoens stated: On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag. Testimony of that type includes no opinion, lay or expert, and does not convey information about what the officer "believed," "thought" or "suspected," but instead is an ordinary fact-based recitation by a witness with first-hand knowledge. In Nesbitt,*fn5 we concluded that such testimony sets forth facts that are not so outside the ken of jurors that they need an expert to spell out for them whether that defendant engaged in a criminal transaction and that offering an expert in those circumstances would be improper.
On the other side of the line, we have permitted experts, with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. Therefore, an expert may explain the roles played by multiple defendants in a drug distribution scheme and may offer an opinion about the implications of the behavior that was observed by the fact witness. Similarly, an expert may explain the significance of quantities of narcotics or its distinctive packaging, which are matters that would not otherwise be known by an average juror. [Id. at 460-61 (citations omitted).] In McLean, the State argued that there is a category of testimony that "lies between those two spheres, governed by the lay opinion rule, that authorizes a police officer, after giving a factual recitation, to testify about a belief that the transaction he or she saw was a narcotics sale." Id. at 461. The Court disagreed and stated:
Were we to adopt that approach, we would be transforming testimony about an individual's observation of a series of events, the significance of which we have previously held does not fall outside the ken of the jury into an opportunity for police officers to offer opinions on defendants' guilt. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case.
[Ibid. (citation omitted).]
Here, we need not reach whether to apply McLean retroactively because the jury acquitted defendant of the possession of CDS with intent charges.*fn6 Thus, even if there was error, it was harmless.
Defendant argues for the first time on appeal that in the assistant prosecutor's summation she injected her personal opinion into the case that the officer's testimony was credible.
The prosecutor's brief comments were in direct response to defense counsel's summation and we are satisfied that none of the comments could have so tainted the jurors as to deprive defendant of a fair trial.
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. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). In making this assessment, we must "consider 'the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.'" Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied sub nom. Timmendequas v. New Jersey, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)).
The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied sub nom. Bucanis v. New Jersey, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)), cert. denied sub nom. Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Indeed, our Supreme Court has recognized that "criminal trials [often] create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting Bucanis, 26 N.J. at 56).
As is the case here, the absence of a timely objection to a prosecutor's remarks during closing argument "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Timmendequas, supra, 161 N.J. at 576. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid.; see also State v. Echols, 199 N.J. 344, 360 (2009) (quoting and applying this standard); Ramseur, supra, 106 N.J. at 323 (same). Defense counsel did not object here.
We will place the assistant prosecutor's comments in context. The defense attorney stated the following in his summation: Ladies and gentlemen, in this case, the officers lied. [Defendant] told the truth.
[T]hink about whether Gatling's telling the truth and whether he could see what he said he saw or whether [defendant] is telling the truth. That there was no bag in the car. I think that there are questions about whether Officer Young ever even went that day . . . to the scene of the accident. It seems more likely that he spoke at some point to someone else who was at the scene and got information from them, and then was writing the report.
If the messenger is faulty or the messenger is deceptive, then how can you trust the message that he's trying to give you. Well, here's where a lack of evidence may help you understand who's telling you the truth and who isn't. Where is that $412? . . . . It disappeared I guess. I have no idea.
I don't know, I'm - I'm really guessing. . . . But . . . Gatling and Young went over to [the accident scene] to do some investigation. Maybe they were interested in the car, maybe they had some idea that they were going to see something in this high narcotic area . . . .
Now, with the police, you know about the power of the police. If you've ever driven a car or been in a car and got pulled over by the police, the police have power, right? The police have power. They can pull you over if they want, they can arrest you if they want, they can arrest or accuse any one of us, any day. . . . Maybe any of us knows someone maybe who was ever falsely accused or maybe a situation where the police maybe got a little loose with the power.
Any of you felt like you could be accused by these officers, that any of them might accuse you falsely, then you understand. Then you understand how [defendant] might feel right now.
In response to defense counsel's summation, and addressing whether defendant stated to the officers that there were drugs in the car, the assistant prosecutor commented:
Now, certainly I think that the police officers' statements that the -- sorry, the police officers' testimony that defendant [stated to them that he had drugs] is more credible than the defendant's testimony [that] he was minding his own business [and] he got in an unfortunate accident while exercising all reasonable caution. And that there were no police officers following him, the police officers who testified weren't even there, and these other police officers who approached his car and removed him [in a] hurry because it might blow up . . . and searched this car and found some secreted place in the car, this heroin. Because it wasn't visible.
There was nothing egregious or unduly prejudicial by the prosecutor's response in her summation that defendant now challenges. Therefore, the prosecutor's comments did not deprive defendant of a fair trial.
Regarding the sentence, the State admits that the judge failed to make the proper findings to overcome the presumption against incarceration, N.J.S.A. 2C:44-1e, and concedes that the matter should be remanded for re-sentencing.
After considering the record and the briefs, we conclude that the remaining arguments advanced by defendant are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed in part, reversed in part, and remanded for re- sentencing.