October 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAMAR GIVENS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-08-02454.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Parrillo and Fasciale.
A jury convicted defendant, Shamar Givens, of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b.*fn1 He was sentenced to a seven-year term, with forty-two months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). Appropriate fees and penalties were also assessed. Defendant appeals, and we affirm.
According to the State's proofs, around 1:00 a.m. on March 1, 2002, while on routine patrol in uniform and in a marked vehicle, East Orange Police detectives Jason Richards and Elemond Tucker observed defendant sitting on a snow-covered sidewalk in front of a home on Prospect Street, a high-crime residential area. Concerned for his well-being on account of the weather conditions, the detectives pulled their vehicle alongside defendant, whereupon they observed him holding an open, partially empty bottle of E&J Brandy. When the detectives exited their vehicle to issue him a summons for drinking in public, defendant dropped the bottle and began walking away. Detective Richards ordered defendant to stop, but defendant looked over his right shoulder, clenched his waistband, and responded "I'm good." Despite several commands to stop from both detectives, defendant continued running northbound on Prospect Street while holding his waist with his right hand. He eventually fell in the snow in front of another residence on Prospect Street, with his hands underneath his body.
When the detectives caught up with defendant, they ordered him to reveal his hands from under his body. After struggling with Detective Tucker, defendant rolled over and put his hands up in the air. Detective Tucker handcuffed defendant and Detective Richards conducted a safety pat-down, which revealed a loaded revolver in defendant's waistband. The detectives secured the weapon and bullets. Defendant was then transferred to headquarters where Detective Tucker logged the gun and bullets into evidence and Detective Richards issued defendant a summons for drinking in public.
Defendant offered a different account at trial. According to defendant, he had left the home of his friend, Joseph Harris, around midnight and, unable to get a taxicab, was walking home when he was stopped by the detectives and searched for no reason. He admitted having a bottle of brandy inside his coat pocket, but denied having drank from it, dropping it to the ground, running from the police, falling in the snow, and significantly, being in possession of the gun.
Evidently crediting the State's version, the jury, as noted, convicted defendant of second-degree unlawful possession of a weapon. On appeal, defendant raises the following issues:
I. THE PROSECUTOR'S QUESTIONING OF DEFENDANT CONSTITUTED PROSECUTORIAL MISCONDUCT.
II. DEFENDANT'S SENTENCE WAS EXCESSIVE.
We find no merit to either of these contentions.
Defendant contends the prosecutor improperly questioned him about his failure to call a witness (Joseph Harris) and to produce phone records of his call to the taxicab company, thereby shifting the burden of proof and negating the presumption of innocence. In support of this argument, he points to the following exchange during the State's cross-examination:
Q. Where is Joseph Harris today?
A. I'm not sure
Q. Does he know you're on trial?
A. Yeah, I guess. He knew I was arrested or spoken to - I didn't speak to him ever since like after that. I don't know.
Q. What cab company did you call?
A. I don't know. He gave me a number. I'm not sure, I think it was Diane Dale, I'm not sure.
Q. You don't know?
A. I'm not sure. 623-5900.
Q. You don't have phone records to verify that either, do you. Right?
A. No, no.
Q. You don't know that name of the company so that we could verify you actually called. Right? [Defendant's Attorney]: Objection, your Honor, this is a defendant, and he doesn't have [the] responsibility of providing or proving his innocence. [Prosecutor]: Absolutely not, Judge. But his credibility is at issue.
The Court: Yes. I'll allow it. We discern no error in the court's ruling.
"It has long been fundamental that it is the obligation of the State in a criminal case to prove the guilt of the defendant on the whole case and every element of the crime by proof beyond a reasonable doubt." State v. Chiarello, 69 N.J. Super. 479, 498 (App. Div. 1961), certif. denied, 36 N.J. 301 (1962). "The burden never shifts to the defendant." Ibid. More pointedly, "a defendant has no obligation to establish his innocence." State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). Further, a defendant has no obligation to offer affirmative evidence on his or her own behalf, and a prosecutor's remarks to the jury implying such a failure are impermissible. Id. at 382-83. A prosecutor's comment that "could be interpreted as shifting the burden to the defense to disprove the State's allegation," however, can be cured by a "trial court's comprehensive charge explaining the presumption of innocence, that the presumption remains until the State has proven guilt beyond a reasonable doubt, that defendant has no burden to come forward with . . . evidence, and that the burden is on the State and that burden never, ever shifts." State v. Loftin, 146 N.J. 295, 389 (1996) (internal quotation marks omitted).
Prosecutors are obviously permitted to cross-examine defendants who testify. "'The scope of cross-examination,'" however, "'is a matter for the control of the trial court, and an appellate court will not interfere with such control unless clear error and prejudice are shown.'" State v. Wakefield, 190 N.J. 397, 452 (2007) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "'Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.'" State v. Jenewicz, 193 N.J. 440, 468 (2008) (quoting N.J.R.E. 611(b)); see also Loftin, supra, 146 N.J. at 344 (noting that "[c]ross-examination is generally limited to the scope of direct examination"). "A party may affect the credibility of a witness by . . . cross-examination upon the issues involved in the case." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2012). "Credibility is always an issue when an accused takes the stand in his own defense." Riddell v. Rhay, 404 U.S. 974, 976, 92 S. Ct. 336, 338, 30 L. Ed. 2d 291, 292 (1971) (Douglas, J., dissenting from denial of certiorari); State v. Miller, 67 N.J. 229, 238 (1975). A prosecutor is permitted to challenge a defendant's alleged inability to recall certain facts, thereby implying that defendant is lying. See State v. O'Brien, 200 N.J. 520, 537 (2009). Clearly, then, prosecutors are allowed to undermine a defendant's credibility during cross-examination. See, e.g., State v. Taffaro, 195 N.J. 442, 452 (2008).
In this case, defense counsel questioned defendant on direct examination about having left his friend's house and attempting to call a taxicab company for a ride home. On cross-examination, the prosecutor inquired whether defendant knew where Harris was the day of trial and whether defendant had records to verify the call to the taxi company. These questions were well within the scope of direct examination and therefore the proper subject of inquiry. They were also designed to test the credibility of defendant, whose version of the events that unfolded on the night in question differed markedly from the detectives' version.
Moreover, the challenged questions were neither detailed nor expansive. The prosecutor, for instance, did not further inquire as to why the witness was not produced or why defendant could not recall which taxicab company he called. To the contrary, the questioning was brief and isolated, and the prosecutor did not reference defendant's responses in summation. Furthermore, the questioning about Harris and the taxicab concerned events that predated defendant's encounter with the police and therefore was tangential to the weapons offense and to the issues of defendant's guilt.
To the extent, however, that the questioning possessed any potential to suggest defendant had any burden to come forward with evidence in his defense, the transgression was remedied effectively by the court's clear and repeated cautionary instructions to the jury that the State bears the burden of proof and that burden never shifts. Specifically, in its final jury charge, the court expressly instructed that "any statements by the attorneys as [to] what the law may be must be disregarded by you if they conflict with my instructions," and, more pertinently, that:
The burden of proving each element of a charge beyond a reasonable doubt rests upon the state and that burden never shifts to [defendant]. The defendant in a criminal case has no obligation or duty [to] prove their innocence or offer any proof related to their innocence.
As noted, there were at least thirteen additional references to the State's burden of proof in the judge's final instructions to the jury.
Given the clarity of these instructions as well as the isolated nature of the questioning, which was well within the scope of direct, designed to impeach defendant's credibility, and tangential to the essential issue of defendant's guilt, there was no error here.
Defendant next complains that his seven-year Graves Act sentence was excessive because it was overly reliant on his criminal period, which he characterizes as minimal. We disagree.
In sentencing defendant, the judge applied aggravating factors 3 (the risk the defendant will commit another offense); 6 (extent of the defendant's prior record); and 9 (the need for deterrence), N.J.S.A. 2C:44-1a(3), (6), (9), and found no mitigating factors. Commenting on defendant's post-record as reflected in defendant's pre-sentence report (PSR), the judge noted:
[a]s a juvenile, [defendant] had seven petitions filed against him resulting in four adjudications. He received probationary terms on three occasions, and was granted formal continuance on another. He was referred to the Juvenile Conference Committee as well as a drug and alcohol program in an antishoplifting program. . . . [As an adult, defendant] has numerous arrests to say the least. . . . I counted 18 . . . .
One prior indictable conviction. This will be his second and he received probation for the prior indictable.
Moreover, the PSR revealed that defendant had been arrested for, among others, theft by unlawful taking, criminal mischief, shoplifting, resisting arrest, eluding police by automobile, aggravated assault, possession of a weapon, violation of probation, possession of drug paraphernalia, robbery, unlawful possession of a weapon, weapon possessed for unlawful purpose, sexual assault, assault, and terroristic threats. Based principally on this record, the judge sentenced defendant to a slightly lower than midrange term of seven years imprisonment, N.J.S.A. 2C:43-6(a)(2), with a statutorily mandated period of parole ineligibility, N.J.S.A. 2C:43-6(c). This sentence does not "shock the judicial conscience." State v. O'Donnell, 117 N.J. 210, 215-16 (1989).