July 9, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANTHONY HUTCHERSON, a/k/a ANTHONY BLACK, ANTHONY D. HUTCHERSON, ANTHONY P. HUTCHINSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-06-1781.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez, St. John, and Leone.
Defendant Anthony Hutcherson appeals from his judgment of conviction for drug offenses. He challenges the denial of his motion for severance, the jury instructions, the prosecutor's summation, and the sentence. We affirm.
The State's evidence can be summarized as follows. On March 13, 2009, Detectives Al Freddy Fletcher and Dennis Daniels were in an unmarked car driven by Sergeant David Robinson, all of the Newark Police Department. They were conducting undercover surveillance near the intersection of Stuyvesant and South Orange Avenues in Newark. The detectives saw a woman approach defendant. After a brief conversation, she gave him currency in exchange for what appeared to be a glassine envelope. Believing that they had witnessed a drug transaction, the detectives followed defendant while Robinson unsuccessfully tried to apprehend the woman.
Defendant entered a nearby apartment building on Stuyvesant Avenue. The detectives followed, stationing themselves on the first and second floors. After several seconds, defendant emerged from an apartment on the first floor, holding ten glassine envelopes marked "DOA, " later found to contain heroin.
Fletcher identified himself and grabbed defendant, who struggled into the apartment. The detectives arrested defendant and recovered the heroin. In the apartment, Fletcher saw thirty zip-lock bags full of cocaine, as well as loose cocaine on a plate, a razor blade, empty plastic bags, and currency. Fletcher also saw an open "Northface" bag containing a loaded and operable .25 caliber handgun and thirty glassine envelopes filled with heroin and similarly marked "DOA." (The bag also contained a loaded .22 caliber handgun, which proved to be inoperable.) The detectives seized the guns, drugs, and the currency in the apartment, which was not defendant's residence. Defendant was subsequently released on bail.
On April 14, 2009, Detective Bennett of the Essex County Sheriff's Office was conducting undercover surveillance near the intersection of Stuyvesant and South Orange Avenues. Bennett saw defendant drive up and exit the vehicle. A woman approached defendant and gave him currency in exchange for an object. Believing this was a drug transaction, Bennett summoned sheriff's officers who detained both defendant and the woman, Michelle Thompson. The officers recovered from Thompson the object she bought from defendant, which proved to be a zip-lock bag containing cocaine. The officers searched defendant and found another zip-lock bag containing cocaine, and $156.
At trial, Thompson appeared as a defense witness. She testified that she was a cocaine addict, and that she bought the cocaine from "a young guy" whom she could not identify. She repeatedly denied having bought it from defendant.
A grand jury indicted defendant for sixteen offenses, which were in three groups. The counts based on defendant's alleged possession of heroin on March 13th (the March possession charges) were count four - possession of heroin, N.J.S.A. 2C:35-10a(1); count five - possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and count six -possession of heroin within 1, 000 feet of a school with intent to distribute, N.J.S.A. 2C:35-7.
The counts based solely on his alleged constructive possession of items in the apartment on March 13th (the March constructive possession charges) were count one - possession of cocaine, N.J.S.A. 2C:35-10a(1); count two - possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); count three - possession of cocaine within 1, 000 feet of a school with intent to distribute, N.J.S.A. 2C:35-7; count seven - unlawful possession of a .25 caliber firearm, N.J.S.A. 2C:39-5b; count eight - unlawful possession of a .25 caliber firearm with a purpose to use it unlawfully, N.J.S.A. 2C:39-4a; count nine - unlawful possession of a .22 caliber firearm, N.J.S.A. 2C:39-5b; count ten - unlawful possession of a .22 caliber firearm with a purpose to use it unlawfully, N.J.S.A. 2C:39-4a; and count eleven - possession of a firearm in connection with a drug offense, N.J.S.A. 2C:39-4.1.
The counts arising from his alleged possession and sale of cocaine on April 14th (the April possession charges) were count twelve - possession of cocaine, N.J.S.A. 2C:35-10a(1); count thirteen - possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); count fourteen - possession of cocaine within 1, 000 feet of a school with intent to distribute, N.J.S.A. 2C:35-7; count fifteen - distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); and count sixteen -distribution of cocaine within 1, 000 feet of a school, N.J.S.A. 2C:35-7.
Prior to trial, the State dismissed counts nine and ten, because the .22 caliber firearm was inoperable. At the close of its case, the State dismissed count eight. The jury acquitted defendant of the remaining March constructive possession charges. The jury convicted defendant of the March possession charges and the April possession charges, which were all third-degree offenses.
At sentencing, the trial judge merged, into count six the other March possession convictions, and similarly merged into count sixteen the other April possession convictions. Defendant concededly qualified for mandatory extended-term sentencing based on a prior drug offense. Based on defendant's numerous other convictions, and the aggravating factors, the judge sentenced defendant to a total of eight years in prison with four years' parole ineligibility, as well as fines and penalties.
Defendant appeals raising the following claims:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A SEVERANCE.
ASSUMING THE TRIAL COURT PROPERLY DENIED DEFENSE COUNSEL'S MOTION FOR A SEVERANCE, IT ERRED BY REFUSING TO ISSUE A LIMITING INSTRUCTION TO THE JURY PURSUANT TO N.J.R.E. 404 (b).
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant first challenges the denial of his motion to sever the March charges from the April charges. He argued that joinder was impermissible, and that he would be prejudiced because it would be difficult for the jury to understand which evidence applied to which charges. The State responded that the March and April charges were part of a common scheme or plan and shared the same modus operandi. The motion judge found the March and April charges "are sufficiently of the same nature, they're both narcotics offenses, distributions that occurred" at "the same general location." The judge noted that the April offenses occurred only a month after the March offenses, and only two weeks after defendant was released on bail on the March charges.
Joinder of "similar or related offenses" is generally preferred "[i]n the interests of [judicial] economy and efficiency." State v. Coleman, 46 N.J. 16, 24 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966); State v. Krivacska, 341 N.J.Super. 1, 38 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed.2d 510 (2002). Also, "if separate offenses were required to be tried separately in all circumstances, the multiplicity of trials would disserve the State and defendants alike." State v. Manney, 26 N.J. 362, 366 (1958).
"The decision on whether to grant a severance generally 'rests within the trial court's sound discretion and is entitled to great deference on appeal.'" State v. Lado, 275 N.J.Super. 140, 149 (App. Div.) (quoting State v. Brown, 118 N.J. 595, 603 (1990)), certif. denied, 138 N.J. 271 (1994). Denial of a motion to sever "will not be reversed in the absence of a clear showing of a mistaken exercise of discretion." Krivacska, supra, 341 N.J.Super. at 38. Here, the motion judge did not abuse his discretion in denying the motion to sever the March charges from the April charges.
"The initial inquiry . . . is whether the challenged counts could properly be joined in the same indictment . . . under Rule 3:7-6." State v. Long, 119 N.J. 439, 514 (1990). Rule 3:7-6 provides:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.
The March and April charges were properly joined under Rule 3:7-6 because they were of the same or similar character. See State v. Baker, 49 N.J. 103, 105, cert. denied, 389 U.S. 868, 88 S.Ct. 141, 19 L.Ed.2d 144 (1967) (two sales of heroin two months apart are of "the same or similar character" and are properly joined). Indeed, defendant engaged in the April drug sale near the same intersection barely two weeks after his release on bail for the March drug offenses. Moreover, "[t]he factual situations were uncomplicated, and the evidence as to each offense was simple and distinct." See ibid.
Defendant argues that the March and April offenses are not part of "a common scheme or plan" under Rule 3:7-6. Under Rule 3:7-6, however, offenses also may be joined if they are "the same or similar in character, " even if they are "separate and distinctive crimes." Krivacska, supra, 341 N.J.Super. at 38. "[E]ither of [these] bases suffices" to justify joinder. Manney, supra, 26 N.J. at 366. These offenses were the same or similar in character, even though different agencies made the March and April arrests, see Baker, supra, 49 N.J. at 104, and even though defendant had access to a stash apartment with drugs, money, and guns in March, but after the search of that apartment operated out of a car in April.
"Notwithstanding the preference for joinder, Rule 3:15-2(b) vests a trial court with discretion to order separate trials if joinder would prejudice unfairly a defendant." State v. Chenique-Puey, 145 N.J. 334, 341 (1996). "A trial court must be accorded ample discretion in determining whether to grant relief from joinder of offenses because of the potential for prejudice." State v. Pitts, 116 N.J. 580, 601 (1989). Furthermore, "defendant bears the burden of demonstrating prejudice." Lado, supra, 275 N.J.Super. at 149.
Defendant argues that joinder prejudiced him because the jury "undoubtedly concluded" he was disposed to engage in drug transactions. Such speculation has long been found insufficient to require severance:
Multiple charges may suggest propensity for crime, and there is the possibility that proof as to one offense will enter into the consideration of another charge. But a mere possibility of such harm is not enough to bar joinder or consolidation; if it were, nothing would remain of the rule. The question is whether a jury is likely to be unable to comply with the trial court's instructions.
[Manney, supra, 26 N.J. at 368.]
Defendant thus failed to show any prejudice that could not be cured by proper jury instructions.
As defendant failed to show prejudice, it was not necessary for the motion judge to find that the evidence of the March charges would be admissible to prove the April charges (or vice versa) under N.J.R.E. 404(b). The State did not claim admissibility under Rule 404(b) as a basis for denying severance. The motion judge found no grounds for severance, and thus did not rely upon Rule 404(b) to deny severance.
Admissibility under Rule 404(b) is not required for joinder under Rule 3:7-6. State v. Lumumba, 253 N.J.Super. 375, 389 (App. Div. 1992). Rather, admissibility under Rule 404(b) or its predecessor (Evid. R. 55) has simply been held to negate a claim of prejudice from joinder, based on the common-sense conclusion that "a defendant will not suffer any more prejudice in a joint trial than he would in separate trials, because the evidence of the other alleged crimes would be admissible in any event under Evid. R. 55." State v. Coruzzi, 189 N.J.Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983); State v. Kent, 173 N.J.Super. 215, 220 (App. Div. 1980). This easy means to dismiss claims of prejudice has been called a key factor, a crucial inquiry, and a central issue in determining whether prejudice exists. Chenique-Puey, supra, 145 N.J. at 341; State v. Oliver, 133 N.J. 141, 151 (1993); Pitts, supra, 116 N.J. at 601; State v. Moore, 113 N.J. 239, 274 (1988). Here, however, where defendant has failed to make any showing of prejudice, severance was properly denied regardless of admissibility under Rule 404(b).
Defendant next challenges the adequacy of the jury instructions to prevent prejudice from the joinder of the March and April charges. However, any prejudice from joinder can be prevented by giving a "multiple-charges" instruction. E.g., Pitts, supra, 116 N.J. at 603 (an instruction cautioning the jurors "to deliberate separately on each of the twelve counts, and to return a judgment of conviction only if convinced that each element of the individual counts had been proved beyond a reasonable doubt" is "adequate"); Coleman, supra, 46 N.J. at 25 (citing instruction "that the defendant was entitled to have his guilt or innocence separately assessed on each indictment and that the determination of his guilt or innocence on one indictment should not be considered as indicative of his guilt or innocence on the other"); Lado, supra, 275 N.J.Super. at 150-51; Coruzzi, supra, 189 N.J.Super. at 301; State v. Maddox, 153 N.J.Super. 201, 207 (App. Div. 1977).
That instruction is currently embodied in the Model Jury Charge (Criminal), "Criminal Final Charge, Multiple Charges" (January 14, 2013):
There are __ offenses charged in the indictment. They are separate offenses by separate counts in the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I will give it to you.
Here, the trial judge properly and repeatedly instructed the jury to consider each count separately using the language from the model instruction and the case law. See, e.g., Coruzzi, supra, 189 N.J.Super. at 299. The judge told the jury before receiving testimony on the April charges:
As you know, there are 14 charges in the indictment and each charge is a separate offense by separate counts in the indictment. The defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge. Okay?
And I'll give you further instructions at the end of the case.
At the end of the case, the judge instructed the jury:
The defendant is charged with separate and distinct offenses in each of the 13 counts of the indictment for your consideration. You are required to give separate consideration to each of the counts charged. It would be improper for you to reach a particular verdict on one count solely because of the verdict you reached on another count or counts.
You are to consider each count separately in light of the evidence which has been produced in this trial as that evidence may be applicable to each count and the law to be applied to each count as I have given it to you.
Defendant argues that the trial judge was also required to give the jury the instruction for evidence admitted under Rule 404(b). However, it is not necessary to give a Rule 404(b) instruction just because counts of the same or similar character are joined for trial. Indeed, joinder does not require a Rule 404(b) instruction even if severance is denied on the ground that the evidence of the joined count would have been admissible under Rule 404(b) if the count had not been joined. We have simply stated that in such situations, severance can be denied because, "if evidence exists that would be admissible under N.J.R.E. 404(b) at both trials, the defendant would not suffer substantially more prejudice in a joint trial than he would in separate trials, even though the jury instructions on admissibility might differ." State v. Alfano, 305 N.J.Super. 178, 192 (App. Div. 1997) (emphasis added).
Defendant cites Krivacska, but there we justified the denial of severance on the basis that evidence of one sexual offense "would be admissible as evidence in a trial" of the second sexual offense under Rule 404(b). Krivacska, supra, 341 N.J.Super. at 38-41. In Krivacska, we indicated:
An appropriate instruction would have apprised the jury of its right to consider the other-crime evidence in determining the feasibility of the proposition that defendant could sexually assault students in his office without being detected.
[Id. at 43.]
We did not hold, however that such a Rule 404(b) instruction was required. Instead, we found no plain error, commenting:
The charge given by the judge clearly conveyed the principle that the jury was prohibited from considering the cumulative impact of the evidence of all the offenses in determining whether a particular charge had been proven. That was the thrust of the instruction to consider each charge separately.
We noted, moreover, that adding a Rule 404(b) instruction might harm rather than help the defendant.
Even from the prism of afterthought, it is doubtful that such an instruction would have aided the defendant's case, particularly when considered in the light of the charge actually given which conveyed the message that other-crime evidence could not be used for any purpose.
Similarly, State v. Blakney, 389 N.J.Super. 302 (App. Div.), rev'd on dissent, 189 N.J. 88 (2006), did not hold that a Rule 404(b) instructions was required when severance was denied because the evidence on the joined count would have been admissible under Rule 404(b) if the count had not been joined. Rather, both courts addressed problems that arose because the trial court did attempt to give both a multiple-charges instruction and a Rule 404(b) instruction, but misplaced a page of the instructions, misworded another part, and allowed prosecutorial misconduct. Blakney, supra, 389 N.J.Super. at 329-30; id. at 347-53 (dissenting opinion); Blakney, supra, 189 N.J. at 97.
We reject defendant's attempt to require a Rule 404(b) instruction for evidence of charged crimes. Rule 404(b) addresses "uncharged" crimes, wrongs, or acts. E.g., State v. Rose, 206 N.J. 141, 159, 179-80 (2011). "The threshold determination under Rule 404(b) is whether the evidence relates to 'other crimes, ' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime . . . ." Id. at 179. Evidence which directly proves a charged offense is "intrinsic" and not subject to Rule 404(b). Id. at 180-81. In most cases, "the prosecutor can charge the defendant with the acts of uncharged misconduct that the prosecutor wishes to have admitted into evidence" and thus avoid the strictures of Rule 404(b). Id. at 162 n.11. Further, Rule 404(b) "limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct." Id. at 161 (emphasis added). Rule 404(b) is not designed to preclude the admission of evidence of charged crimes.
In almost every criminal trial, more than one charge is joined for trial. To require Rule 404(b) limiting instructions in such cases to explain how the evidence of each charge could be used regarding each other charge would be difficult and sometimes impossible, and would greatly complicate both the court's instructions and the jury's duties. There is no indication of an intent to impose such an onerous requirement in Chenique-Puey, Oliver, Pitts, Moore, Coruzzi, or Kent, rather, those cases simply reached the common-sense conclusion that joinder was not prejudicial when the jury would hear the same evidence under Rule 404(b) even if the charges were severed. In any event, the motion judge here did not deny severance of the charged offenses because the evidence would have been admissible under Rule 404(b).
The trial judge found the multiple-charges instruction to be sufficient. The judge correctly noted that the case was not confusing: "There are two incidents that occurred at two different times, one in March and one in April." The judge thought "any reasonable juror will be able to look at the evidence that's appropriate for each case and I will certainly give them that instruction at the conclusion of the trial . . . ." Accordingly, the multiple-charges instruction given at the end of the trial was the proper instruction.
In his closing argument, the prosecutor reinforced the multiple-charges instruction, but then went further:
Now, the judge will instruct you and I'm going to say right now also every [count] you have to find separately was he guilty or not guilty of that [count] on that day. Did he do it or not do it. And the mere fact that he did it on this other day doesn't mean that he did it on that day.
But you also don't have to ignore . . . when you're considering April 14th, you don't have to ignore what you saw and heard about what happened on March 13th. You can —
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled. The judge's instructions will control.
[THE PROSECUTOR]: . . . You can consider though the way certain evidence might reinforce one another. It can show that this wasn't a mistake by Mr. Hutcherson that, you know, he can't — he would undermine any notion that he didn't have intent to distribute on [March] 13th when he was caught in the act of distributing on the 14th of April.
And you can also consider in so far as gauging credibility and whether or not there was a mistake; whether or not the officers were mistaken — both sets of officers from both agencies separately mistakenly picking on Mr. Hutcherson for no reason. You can consider whether or not that's credible.
In response, defense counsel requested, in addition to the multiple-charges instruction, a Rule 404(b) instruction. The judge correctly noted that giving both instructions would be "tricky." See Blakney, supra, 389 N.J.Super. at 349-51 (dissenting opinion) (noting the "tricky" difficulties of coordinating the multiple-charges instruction and the Rule 404(b) instruction). After much discussion, the judge concluded that a Rule 404(b) instruction would be inappropriate and "too confusing for the jury, " and that it was sufficient to give the multiple-charges instruction.
Defendant argues it was improper for the prosecutor to argue that evidence of the April offenses could be used to prove defendant's intent in March, or to prove the absence of accident or mistake. The State responds by citing cases applying the concept of "res gestae, " but the Supreme Court has held "that the doctrine of res gestae no longer has vitality." Rose, supra, 206 N.J. at 146, 176-82.
Even if the prosecutor's argument was erroneous, the trial judge told the jury that "[t]he judge's instructions will control." As set forth above, the judge gave a thorough multiple-charges instruction. Thus, the question is "whether a jury is likely to be unable to comply with the trial court's [multiple-charges] instruction." Moore, supra, 113 N.J. at 276 (quoting Manney, supra, 26 N.J. at 368).
"We presume the jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012). Indeed, we have held that "[i]t must be assumed that the jury followed the trial court's [multiple-charges] instructions." State v. Modell, 260 N.J.Super. 227, 246 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993). Defendant has failed to "show that the jury deliberately ignored the court's simple and clear [multiple-charges] instructions." Coruzzi, supra, 189 N.J.Super. at 301.
Moreover, the jury's verdicts strongly indicate that it followed the multiple-charges instruction rather than accept the prosecutor's argument. Despite the prosecutor's attempt to use the evidence supporting the April possession charges (counts twelve through sixteen) to bolster the March charges, the jury acquitted defendant of all five remaining March constructive possession charges (counts one, two, three, seven, and eleven), which included the .25 caliber handgun in the Northface bag and the cocaine. As in Moore, "the trial court instructed the jurors that they had to establish the elements to each count separately, and the jury clearly was able to comply as evidenced by the acquittal" on those five counts. See Moore, supra, 113 N.J. at 276. "The absence of prejudice to defendant [thus] is evidenced by the jury's verdict . . . ." Ibid., Krivacska, supra, 341 N.J.Super. at 43 (finding "little or no danger that the jury considered the other-crime evidence to find a general propensity" where the jury acquitted the defendant of one of the charges). Accordingly, we cannot say that the claimed error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see State v. Lester, 271 N.J.Super. 289, 292 (App. Div. 1994), certif. denied, 142 N.J. 453 (1995).
Defendant next challenges two remarks in the prosecutor's summation. Prosecutors are "entitled to argue the merits of the State's case 'graphically and forcefully, '" Smith, supra, 212 N.J. at 403 (quoting State v. Feaster, 156 N.J. 1, 58 (1998) (citation omitted)), "and are afforded considerable leeway in that endeavor, " State v. Ingram, 196 N.J. 23, 43 (2008). In examining a prosecutor's comments, "an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel." Smith, supra, 212 N.J. at 404. Other "[f]actors to be considered in analyzing prosecutorial conduct include: whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court gave the jury a curative instruction." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989). "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed.2d 89 (2001).
The first challenged remark responded to defense counsel's summation. Defense counsel argued that the jurors had to find reasonable doubt because "you don't really have the proof that one would expect" regarding the March charges. In particular, defense counsel noted that Robinson "was the guy in charge, " but complained that Robinson did not testify. The prosecutor responded that Robinson was "the senior person on the scene, but we made the assessment that . . . Mr. Robinson's testimony wouldn't have added anything." The prosecutor then added that if "Robinson was such a credible witness, [defense counsel] could have called him" to the stand.
Five days later, defendant objected and demanded a mistrial. The trial judge denied a mistrial "at this late stage." Defendant then requested and promptly received a curative instruction, in which the judge told the jurors:
you may recall last week in closing arguments that [the prosecutor] argued that [defense counsel] could have called Sergeant Robinson as a witness. I'm just going to remind you that the defense has no burden to call any witnesses, okay?
Defendant argues the prosecutor's remark shifted the burden of proof to the defense, the requested curative instruction was insufficient, and a mistrial was required.
It is well settled that the State has the burden of proof, and that "[a] defendant need not call any witnesses." State v. Hill, 199 N.J. 545, 558-59 (2009). A prosecutor may not argue to the jury that the defendant has an "obligation to establish his innocence" by "proffering affirmative evidence on his own behalf." State v. Jones, 364 N.J.Super. 376, 382 (App. Div. 2003).
Here, however, the trial judge gave a curative instruction promptly after defendant's belated objection. The curative instruction made clear defendant had no burden to call any witnesses. This instruction, coupled with the judge's instructions on the burden of proof, alleviated any prejudice from the prosecutor's remark. See State v. Jenkins, 349 N.J.Super. 464, 479 (App. Div. 2002) (curative instruction alleviated any prejudice from the prosecutor's comments allegedly suggesting that the defense had a burden of proof); see also Wilson, supra, 128 N.J. at 245 (finding no prejudice from prosecutor's unauthorized argument for an adverse inference from the defendant's failure to call a witness); State v. Irving, 114 N.J. 427, 444 (1989) (same).
Defendant next challenges a remark by the prosecutor concerning Thompson, who testified for the defense that she bought the cocaine from an unknown person, and not from defendant. The prosecutor argued that the jurors "have to judge her demeanor, the way she testified to determine whether or not you believe her." The prosecutor noted that when testifying "[s]ometimes she had to be asked a couple of times, " and generally "[s]he was really slow to answer."
The only answer Ms. Thompson could provide quickly was that she didn't buy from Mr. Hutcherson. That was the only thing she knew for certain was that it wasn't Mr. Hutcherson. Now, is that because it wasn't Mr. Hutcherson or is that because she would be coached, she would practice.
The one thing she had to get up there and say is that she didn't buy from him.
The trial judge overruled defendant's objection, ruling that the prosecutor "can talk about her demeanor."
Defendant challenges the prosecutor's use of the word "coached." "'[P]rosecutors are prohibited from casting unjustified aspersions on the defense or defense counsel.'" State v. Wakefield, 190 N.J. 397, 446 (2007) (citations omitted), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed.2d 817 (2008). The first inquiry is "whether the prosecutor committed misconduct" by casting "unjustified aspersions." Ibid. Here, as the trial judge ruled, the prosecutor had every right to comment on Thompson's mode of testifying. See State v. Johnson, 287 N.J.Super. 247, 267 (App. Div.) ("a prosecutor may point out discrepancies in a witness's testimony or a witness's interests in presenting a particular version of events"), certif. denied, 144 N.J. 587 (1996); see also Timmendequas, supra, 161 N.J. at 594 ("It does not denigrate the defense . . . to 'speak frankly about what is manifest in the record.'"). However, the prosecutor's question whether the witness's certainty arose "because she would be coached" was problematic absent any corroborating evidence of such coaching. See State v. Rose, 112 N.J. 454, 519 (1998) (it was improper for a prosecutor to imply that an expert's testimony was fabricated with the assistance of defense counsel because "[t]here was no support in the record for the prosecutor's innuendo").
The second inquiry is "whether the prosecutor's conduct constitutes grounds for a new trial." Wakefield, supra, 190 N.J. at 446 (quoting State v. Smith, 167 N.J. 158, 181 (2001)).
We have explained that, in order to meet the second part of the test, "the misconduct must have been 'so egregious that it deprived defendant of a fair trial.'" Stated differently, "[t]o warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense."
[Ibid. (quoting Smith, supra, 167 N.J. at 181-82 (citations and other internal quotation marks omitted).]
Here, we do not find that the prosecutor's "fleeting and isolated" query rose to that level, particularly given the trial judge's instructions that counsel's arguments were not evidence. See State v. Watson, 224 N.J.Super. 354, 362 (App. Div.) (finding no prejudice from prosecutor's remarks stating that "the role of defense counsel is to obfuscate the facts"), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S.Ct. 535, 102 L.Ed.2d 566 (1988).
Defendant claims his sentence is manifestly excessive. He concedes he qualified for mandatory extended-term sentencing. He does not dispute that the facts supported the trial judge's findings of the following aggravating factors: three ("The risk that the defendant will commit another offense"); six ("The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and nine ("The need for deterring the defendant and others from violating the law"). N.J.S.A. 2C:44-1a(3), (6), (9).
Defendant argues, however, that aggravating factor six should not have been given any weight, because his criminal record was already used to authorize his extended term, and it would be double-counting to consider it as an aggravating factor. In fact, the trial judge based defendant's extended-term sentence, not on his whole criminal record, but on one conviction on November 17, 2000 for drug distribution within 1, 000 feet of a school. As only one conviction was needed to justify the extended term, N.J.S.A. 2C:43-6f, the judge could consider defendant's other convictions to determine the seriousness of his criminal record. Cf. State v. Vasquez, 374 N.J.Super. 252, 267-68 (App. Div. 2005) (trial court expressly used a school zone conviction both to justify the extended term and to sentence to the maximum of that term); see also State v. Henry, 418 N.J.Super. 481, 492 (Law Div. 2010); State v. Malik, 365 N.J.Super. 267, 283 (App. Div. 2003), certif. denied, 180 N.J. 354 (2004).
Aside from that conviction, defendant's criminal record included: five juvenile adjudications for robbery, possession of firearms, possession and distribution of drugs, and other offenses; seven prior adult convictions in Superior Court encompassing robbery, resisting arrest, and numerous drug offenses, including several other drug distributions within 1, 000 feet of a school; and multiple municipal court convictions. Thus, this was not a case where the "[d]efendant's criminal history, apart from the prior school zone case, is minimal." Cf. Vasquez, supra, 374 N.J.Super. at 268 (the defendant's only other record were two prior municipal court convictions). The trial judge properly ruled that consideration of this "extensive" and "serious" criminal record was not "double counting." See State v. McDonald, 209 N.J. 549, 555 (2012) (rejecting the argument "that the court double counted her prior record by using it as an aggravating factor and as a basis for imposing an extended term"); see also State v. Carey, 168 N.J. 413, 425-26 (2001).
Defendant similarly argues that no weight can be given to aggravating factor three, because considering his risk of reoffense double-counts the criminal record used to authorize the extended term. As set forth above, however, most of his criminal record was not thus used. Moreover, the risk of reoffense is an independent assessment that properly considers prior record along with other factors.
[I]mplicit in a sentencing court's assessment of the defendant's risk of recidivism (factor (3)), the seriousness and extent of a defendant's prior criminal record (factor (6)), and the need to deter defendant and others (factor (9)) is a qualitative assessment that we want and expect the court to make. A court's findings assessing the seriousness of a criminal record, the predictive assessment of chances of recidivism, and the need to deter the defendant and others from criminal activity, do all relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history.
State v. Thomas, 188 N.J. 137, 153 (2006). Here, the trial judge, considering defendant's criminal record and the other facts, found a "strong possibility" that he would reoffend.
Defendant next challenges the weight given to aggravating factor nine, the need for deterrence. "Deterrence has been repeatedly identified in all facets of the criminal justice system as one of the most important factors in sentencing." State v. Megargel, 143 N.J. 484, 501 (1996). We look to the sentencing court to assess the need for specific deterrence of the defendant before it and general deterrence of other potential offenders. State v. Gardner, 113 N.J. 510, 520 (1989). Here, the trial judge made that assessment, and found that both general and specific deterrence were needed in defendant's case.
Defendant argues that the need for deterrence exists in every case, so aggravating factor nine should be given little weight, and cites Gardner. To the contrary, the Supreme Court in Gardner assumed that specific deterrence was not needed in every case, unlike general deterrence where "'there is positive need in all cases to deter conduct.'" Ibid. The Court ruled that, where there is no need for specific deterrence of the defendant being sentenced for a third-degree offense "general deterrence alone is not sufficient to overcome the presumption against imprisonment" Ibid; see also NJSA 2C:44-1(d) Nothing in Gardner prevents a trial judge who as here finds a need for specific as well as general deterrence from giving aggravating factor nine appropriate weight
In any event "we are satisfied that the overall sentences were fair and well deserved" State v. Leopardi, 305 N.J. Super 70, 82 (App Div 1997), certif. denied, 153 N.J. 48 (1998) Based on his arguments above defendant claims that the aggravating factors do not warrant an eight-year sentence with a four-year parole disqualifier but a seven-year sentence with the three-year parole-disqualifier Because we have rejected defendant's arguments we have no difficulty concluding that the sentence imposed is not "clearly unreasonable" or "such a clear error of judgment that it shocks the judicial conscience" State v. Roth, 95 N.J. 334, 364-65 (1984).