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State v. Smith

Superior Court of New Jersey, Appellate Division

July 11, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JULIUS SMITH, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 12, 2012

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-10-01742.

Kevin G. Roe argued the cause for appellant.

Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Hsu, of counsel and on the brief).

Before Judges Fuentes, Grall and Hayden.

PER CURIAM

Tried by a jury, defendant Julius Smith was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one), and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and was acquitted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:58-4 and 2C:39-5b (count three).[1] Defendant appeals his conviction, and we affirm.

I.

We discern the following facts from the record. On July 2, 2009, at approximately 11:30 p.m., Jane Gourgiotis, after having a few drinks with friends, was walking on a street in Jersey City, listening to music through earphones. A dark-colored, "long boaty type" car pulled up to the curb near her, and a "black man in a black shirt and jeans" got out of the front passenger side of the car. He walked up to Gourgiotis, standing directly in front and slightly to one side, and said something that she did not hear because of her earphones. The man then tapped her hip with a black handgun near her purse. Gourgiotis gave him the purse, which contained her wallet, money, identification, cell phone, and iPod. He then returned to the car, which drove away. The entire incident lasted about ten seconds.

Gourgiotis proceeded immediately to the nearby police station to report the crime. She described the robber and the vehicle to Jersey City Detective Christopher Baker, who transmitted the information to police patrol units so they could search the area. Thirty minutes later, an officer in a patrol unit informed Baker that they had stopped a vehicle matching Gourgiotis' description. He requested that she participate in a showup identification to see if she recognized the passengers. After viewing the suspects for one or two minutes, Gourgiotis stated without hesitation that neither man was the robber and that the car was not the robbery vehicle. Soon thereafter, the police located her empty purse in the area and she returned to her home.

A few hours later, two Jersey City police officers drove past a gas station and saw a black Oldsmobile Aurora, which matched the description of a car used in several robberies in Jersey City that night. Two African-American men wearing white t-shirts and jeans exited the gas station convenience store and entered the vehicle. One of the men, later identified as defendant, was heavyset, with short hair and some slight facial hair. He got into the front passenger seat. The second man, Jerry Martin, who had a stocky build and cornrows or dreadlocks in his hair, got into the driver's seat. As the car pulled away from the gas station, the officers stopped it and found a third man in the back seat of the car.

After speaking to the men, the police brought them to the police station for further questioning. The police impounded the vehicle due to lack of a registration or title. The police did not find Gourgiotis' cell phone or her other property, the proceeds from any robbery, or any weapon either on the men or in the vehicle.

On July 6, 2009, Jersey City Detective Angel Pastrana phoned Gourgiotis to request that she look through some photobooks[2] at the Bureau of Criminal Investigation (BCI) to possibly identify the robber. Pastrana asked the BCI staff to include photographs of defendant and his two companions because the incidents in which they were suspects appeared to have similarities with the Gourgiotis robbery. Pastrana, who was not an investigator on the Gourgiotis robbery, had not seen any of the three men before, and did not know where in the photobooks the BCI staff placed their photographs. He told her that the robber's picture may or may not be in the books. All of the photos had digital information printed on the bottom, generally including the date the photo was taken. On defendant's picture, "7/3" was printed at the bottom.

At the BCI, Gourgiotis, while sitting in a small room by herself with the detective standing outside, looked through the first of four photobooks. She located defendant's photo after about fifteen pages. She looked through the rest of the book, then returned to defendant's photo and identified him as the robber. She was confident about her identification because in the picture, defendant had the same short "buzzed cut" hairstyle, eyebrows, nose, and facial features as her robber. Gourgiotis did not recall noticing the date printed on the bottom of the photos until after she identified defendant's photo because she was "way busy looking at faces."

Next, Pastrana took Gourgiotis to the police impound lot to see whether the robbery vehicle was there. After looking around for a little while, she led Pastrana to the Oldsmobile Aurora in which defendant was riding when arrested on July 3, 2009. Gourgiotis told the detective that she was certain that the car she identified looked very similar to the robber's vehicle. Before she identified that vehicle, Pastrana had not known its location. Subsequently, defendant was charged with the armed robbery of Gourgiotis and related weapons crimes.

Approximately six weeks after the robbery, a New Jersey state trooper called Gourgiotis to tell her that he had found her stolen cell phone in a vehicle driven by an individual arrested on August 10, 2009.[3] The individual, named Stebben Drew, was wearing a white t-shirt and driving a black Infiniti, stolen two days prior to his arrest. When speaking to the prosecutor at the start of the trial, Gourgiotis first did not tell him about the trooper's call. As a result, neither the prosecution nor the defense learned of this event until the trial.

On November 3, 2010, at defendant's request, Judge Frederick J. Theemling conducted a Wade[4] hearing. After hearing the testimony about the identification, the judge observed that he would not have held a Wade hearing if he had seen the police report. He found that the identification method employed by the police was not at all suggestive. He rejected defendant's argument that the "7/3" date printed on the bottom of his picture was unduly suggestive because there were hundreds of pictures with dates on the bottom that the victim reviewed.

While testifying at the trial, Gourgiotis described the robber as a heavyset black male with short hair, wearing jeans and a black t-shirt.[5] She remembered his face because he stood close to her and she looked directly at him. Specifically, she recalled that "his eyebrows were a little bit thick, " and that "his nose was small and he had some facial hair." During her testimony, she identified defendant as the man who robbed her.

When Gourgiotis viewed Drew's photograph at trial, she was "very confident" that she had never seen him before and that he was not her robber. In particular, she explained that Drew had longer hair and a different nose than the robber.

On November 5, 2010, following the four-day trial, the jury convicted defendant of armed robbery (count one) and possession of a firearm for an unlawful purpose (count two). On March 28, 2011, the judge merged count two into count one and sentenced defendant to a term of twenty years in state prison with eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate fines and penalties. This appeal followed.

On appeal, defendant raises the following contentions for our consideration:

POINT I - DEFENDANT HAS BEEN DEPRIVED OF AN OPPORTUNITY TO PRESERVE AND PRESENT ISSUES ON APPEAL AS A RESULT OF THE TRIAL COURT'S FAILURE TO PRESERVE A PROPER TRIAL RECORD, TO WIT, CONVERSATIONS BETWEEN COUNSEL AND THE TRIAL JUDGE AT SIDEBAR.[6]
POINT II - THE TRIAL COURT ERRED IN ALLOWING THE STATE TO SOLICIT AN IN-COURT IDENTIFICATION OF DEFENDANT BY THE ALLEGED VICTIM FOLLOWING A PRE-TRIAL PHOTOGRAPHIC IDENTIFICATION PROCEDURE WHICH VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
A. The Photographic Identification Procedures Used by Police Were Unduly Suggestive.
B. As a Result of Unduly Suggestive Procedure, Identification of Defendant Was Inherently Unreliable and Has Resulted in a Substantial Likelihood of Misidentification.
POINT III - REFUSAL OF THE TRIAL COURT TO PRODUCE THE PHOTOGRAPH BOOKS USED BY POLICE IN SECURING THE OUT OF COURT IDENTIFICATION OF DEFENDANT HAS RESULTED IN A DENIAL OF DUE PROCESS UNDER THE FIFTH AMENDMENT AND THE RIGHT OF CONFRONTATION UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL, OR ALTERNATIVELY A CONTINUANCE, IN LIGHT OF NEWLY DISCOVERED EVIDENCE TENDING TO EXCULPATE THE DEFENDANT.
POINT V - DEFENDANT WAS DEPRIVED OF A FAIR TRIAL AS A RESULT OF TESTIMONY REFERENCING A PRIOR ARREST.
POINT VI - DEFENDANT WAS UNDULY PREJUDICED BY THE PROSECUTOR'S IMPROPER REMARKS DURING THE STATE'S SUMMATION.
POINT VII - THE VERDICT OF THE JURY WAS AGAINST THE REASONABLE WEIGHT OF THE EVIDENCE.

II.

First, defendant contends that Gourgiotis' pretrial identification of defendant was the result of an improperly suggestive police procedure, which tainted both her out-of-court and in-court identification of defendant. Defendant claims that the detective standing outside the small room where she was reviewing the photobooks made her feel compelled to identify a suspect. Additionally, he alleges that the detective's statement to the victim that her robber's picture may or may not be in the books improperly implied that the picture might be in the books. Further, defendant contends that the digital printing on defendant's photo of "7/3, " the date of the day after the robbery, compelled Gourgiotis to pick defendant's picture. Defendant concludes that the admission of the unduly prejudicial identification testimony mandates reversal of his conviction. We disagree.

"[S]uggestive police procedures may 'so irreparably taint the out-of-court and in-court identifications' that a defendant is denied due process." State v. Henderson, 208 N.J. 208, 285 (2011) (quoting State v. Madison, 109 N.J. 223, 239 (1988)) (internal quotation marks omitted). A trial court may hold a Wade hearing to determine whether a pretrial identification of a criminal defendant was properly conducted and therefore admissible under N.J.R.E. 803(a)(3), in order to test the identification's reliability and ultimate admissibility. See State v. Michaels, 136 N.J. 299, 319 (1994).

Wade hearings are not automatic in every case in which there is an out-of-court identification. State v. Ruffin, 371 N.J.Super. 371, 391 (App. Div. 2004). The court must first ascertain whether the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503-04 (2006). A Wade hearing should be held when a "defendant presents 'some evidence of impermissible suggestiveness' in the identification process." State v. Cherry, 289 N.J.Super. 503, 517 (App. Div. 1995) (citation omitted). Furthermore,

the determination [of impermissible suggestiveness] can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist.
[Madison, supra, 109 N.J. at 234 (quoting State v. Farrow, 61 N.J. 434, 451 (1971)).]

If the court finds that the identification procedure was impermissibly suggestive, it must then determine whether the procedure was nevertheless reliable. Herrera, supra, 187 N.J. at 503-04. "The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Ibid.

The factors to be considered in determining reliability include: (1) the opportunity of the eyewitness to view the criminal at the time of the crime; (2) the eyewitness' degree of attention; (3) the accuracy of the eyewitness' prior description of the criminal; (4) the level of certainty demonstrated by the eyewitness at the confrontation; and (5) the length of time between the time of the crime and the confrontation. State v. Adams, 194 N.J. 186, 204 (2008) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977)). If, after the evaluation of those factors, the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness' identification is reliable, the identification may be admitted into evidence.[7] Ibid. (citing Herrera, supra, 187 N.J. at 503-04).

Here, the trial judge conducted a Wade hearing before determining that the out-of-court identification was admissible. The judge found that the circumstances under which Gourgiotis identified defendant were not suggestive at all. Pastrana, who was not heretofore involved in the investigation, told Gourgiotis that the robber might or might not be in the books she was to view. There is no evidence that Gourgiotis felt pressured when she looked through the photobooks, and she viewed the books in a room by herself with the detective standing outside. Less than four days after the robbery, after observing about two hundred pictures, she made a definite identification. Moreover, her identification of defendant is corroborated by her identification of the car in which he was a passenger when arrested several hours later.

Defendant also argues that the photobooks are highly suggestive, and his Fifth Amendment right to due process and his Sixth Amendment right to confrontation were violated because the photobooks could not be produced in the form in which they appeared when Gourgiotis viewed them on July 6, 2009. Again, we disagree.

When they are properly utilized for investigatory purposes, photobooks are not unduly suggestive. See, e.g., State v. Janowski, 375 N.J.Super. 1, 8-10 (App. Div. 2005); Ruffin, supra, 371 N.J.Super. at 391-92. The record shows that the photobooks here were comprised of hundreds of photos organized by gender, race and height only, criteria which constitute a "neutral presentation." Janowski, supra, 375 N.J.Super. at 10 (quoting Ruffin, supra, 371 N.J.Super. at 395). Defendant argues that this arrangement was highly suggestive because it failed to consider other physical characteristics, such as facial hair, scars, and skin tone. However, the use of fewer rather than more factors is advantageous "so the number of photographs displayed would be greater." Id. at 5. Furthermore, facial hair, scars, and skin tone are less reliable factors for categorization than race, height, and gender because the first three factors are not immutable.

Nor do we perceive any constitutional infirmity in the failure to preserve and provide the photobooks shown the victim. We have upheld photobook identifications in circumstances identical to those here, finding "the police only have to preserve photographs actually identified." Ruffin, supra, 371 N.J.Super. at 397 (citation omitted). "[T]he failure to preserve the photographs does not constitute a reason to preclude the out-of-court identification absent bad faith by the police." Id. at 392. The fact that the original photobook is not available does not affect the admissibility of the identification, only its weight. Id . at 383. Defendant has not identified any facts pointing to bad faith by the police.

Here, each photograph in the photobooks displayed on the bottom the date on which it was taken. Defendant argues that the date on defendant's photo, "7/3, " was impermissibly suggestive and fatally tainted the identification. Defendant maintains that the date must have influenced the victim to choose defendant's photo because of the closeness of the date to the robbery. We agree with the trial judge that where defendant viewed about 200 photos that had similar notations on the bottom, the notation was not impermissibly suggestive. Additionally, Gourgiotis testified that she was concentrating on the faces in the photos and did not notice the date until after she identified defendant's picture.

Moreover, even if the out-of-court identification was impermissibly suggestive, we find that, under the totality of the circumstances, the in-court identification was reliable. Gourgiotis had an opportunity to view defendant during the robbery because she saw him approach her, and he stood directly in front of her. She provided a fairly detailed description of his facial features. She was adamant that neither of the men she viewed shortly after the robbery was her robber, despite the inherently suggestive nature of the showup. See Herrera, supra, 187 N.J. at 504. Gourgiotis identified her robber's picture less than four days after the robbery. Her recollection of her robber's appearance remained consistent. Additionally, her identification of the car in which defendant was riding when arrested on July 3, 2011 strongly supports her identification of defendant. For these reasons, we are satisfied that the in-court identification was reliable.

III.

Defendant next argues that the judge should have granted his motion for a mistrial or granted a continuance for defendant to investigate the newly discovered evidence that the State police had arrested a person in August 2009 with Gourgiotis' cell phone. There is no dispute that as soon as Gourgiotis revealed this information to the prosecutor, he informed the defense attorney. The judge denied defendant's request for a mistrial or a continuance since the new information did not change his strategy that a third party committed the crime, but rather, reinforced the premise. Defense counsel vigorously pursued the subject on cross-examination of Gourgiotis. By the next day the prosecutor obtained and provided to defendant the police report of the arrest, Drew's photos, and his arrest record. Gourgiotis returned to the witness stand, viewed Drew's photo, and denied that he was the robber. The State and defendant then entered into a stipulation that was read to the jury, stating that if a person from the state police testified he or she would say as follows:

[One, ] that the victim's phone was found in the possession of an individual arrested by the state police on August 10, 2009 in his vehicle at the time of the arrest. Two, the man arrested [was] a black male age twenty-five, weight a hundred and seventy-five pounds, wearing a white T-shirt at the time of his arrest. Three, that person at that time had an outstanding warrant from the Jersey City police.

The defense attorney discussed the stipulation and the discovery of the cell phone at great length during his summation, using it to bolster defendant's theory that a third party committed the robbery.

Defendant contends that the judge erred by not granting his request for a mistrial or a continuance in order to allow time to investigate the new evidence. We find no merit in this argument.

"A mistrial is an extraordinary remedy[]" that should be employed "[o]nly when there has been an obvious failure of justice . . . ." State v. Mance, 300 N.J.Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has an appropriate alternative course of action, " it should deny a request for a mistrial. Id. at 281 (citing Loyal, supra, 164 N.J. at 436-37). For example, the trial judge may adjourn the trial to allow counsel sufficient time to investigate the previously undiscovered evidence. State v. Clark, 347 N.J.Super. 497, 509 (App. Div. 2002).

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb a trial judge's ruling on a motion for a mistrial unless it presents an abuse of discretion resulting in a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969).

Defendant argues that he was prejudiced by not having time to investigate Drew's arrest further. However, as the trial judge noted, the new information did not create a new theory for the defense to pursue; it merely bolstered defendant's third-party liability theory. Defendant failed to show that additional evidence from an investigation pertaining to Drew's arrest would probably change the jury's verdict if a new trial were granted, State v. Bey, 161 N.J. 233, 287 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed.2d 964 (2000), especially since Gourgiotis adamantly denied that Drew was her robber.

Defendant also claims he was prejudiced because the court did not permit him to subpoena Gourgiotis' cell phone records, which, in his view, hindered the establishment of a third party liability defense. However, approximately twenty minutes after the robbery, Gourgiotis cancelled her cell phone service. Moreover, Gourgiotis' cell phone records were material to a third-party liability defense even before the parties learned of Drew's arrest, but the defense failed to obtain those records prior to trial.

We discern no abuse of discretion in this context. We conclude, under the circumstances here, where defense counsel obtained relevant documentation of Drew's arrest, secured a stipulation concerning Drew's possession of Gourgiotis' cell phone, cross-examined Gourgiotis about the discovery of the cell phone and Drew's photo, and argued to the jury at length concerning Drew's arrest during summation, that the judge did not abuse his discretion in denying defendant's motion for a mistrial or a continuance. We are satisfied that the judge's refusal to grant a mistrial or continuance did not lead to an obvious failure of justice.

IV.

Next, defendant contends that, contrary to N.J.R.E. 404(b), evidence of prior crimes was impermissibly admitted to prove that he committed this crime. Specifically, defendant points to testimony of Pastrana during cross-examination concerning how the pictures of defendant and his two companions were placed in the photobooks for the victim to view.

[Defense attorney]: Let's take it step by step. . . . You called down to BCI, you're going to bring a person down to look in the book, correct?
[Pastrana]: Correct.
[Defense attorney]: And the guy at the BCI is preparing the book, is that correct?
[Pastrana]: That's correct.
[Defense attorney]: And you say to him, what?
[Pastrana]: I said I'm bringing a victim down, I have three names. Can you put them in their respective places and they'll take out their jackets if they had any prior history which is their file [sic] . . . .
[Emphasis added.]

Defense counsel interrupted to request a sidebar discussion. At sidebar, defendant moved for a mistrial because the detective had used the words "prior history, " which defendant contended implied that defendant had a prior arrest record. The judge disagreed and denied the motion. After the discussion was completed, the next question defense counsel asked was:

[Defense attorney]: You talked about — you used the words prior history. You're talking about this arrest . . . on the third, is that correct?
[Pastrana]: No.

Defense counsel immediately moved to renew his prior motion for a mistrial, arguing that the detective's testimony implied that defendant had an arrest history prior to the one known to the jury on July 3, 2009. When the judge denied the mistrial motion, defense counsel then moved for the judge to strike the testimony from the record and to instruct the jury that the testimony should not be considered in any manner. The judge also denied this motion but agreed to correct any impression that the testimony was a reference to defendant having a prior criminal history.

The judge immediately instructed the jury that photos come from a variety of sources, including "driver's license applications, passports, ABC identification cards, various forms of government employ[ment], " and "from a variety of other sources totally unrelated to criminal activity."[8] He also informed the jury that the photo in the book was taken from defendant's arrest on July 3 on unrelated charges about which the jury had previously heard testimony. During jury instructions, he again charged the jury that photos come from a variety of sources unrelated to criminal history.

Since defense counsel objected to the detective's testimony at trial, the harmful error rule applies. Under this rule, an error will not lead to reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2. The error must create a reasonable doubt that it contributed to the unjust verdict and denied defendant a fair trial. State v. Colbert, 190 N.J. 14, 31 (2007).

Pursuant to N.J.R.E. 404(b), other-crime evidence is generally not admissible to prove guilt by criminal predisposition. See also State v. Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent to prove one crime by proving another." (citation omitted)). The rationale for this is that a jury, aware of such evidence, may be tempted to convict, not by reason of proof, but by reason of perception. State v. Gibbons, 105 N.J. 67, 77 (1987).

In our view, the detective's testimony that jackets would be removed from the photos in the photobooks "if they had any prior history" did not refer to defendant having a prior criminal history. Nor could a reasonable juror infer that defendant had a prior history from the detective's general statement. Since the detective was not referring to defendant's prior history when he made that statement, his answer in the negative to the question about whether he was referring to defendant's July 3 arrest also cannot be deemed to refer to defendant having a prior criminal history. Thus, contrary to defendant's arguments, we find that there is no N.J.R.E. 404(b) violation here.

Even if Pastrana's testimony suggested prior bad acts so that its admissibility was governed by N.J.R.E. 404(b), the judge swiftly took firm and clear curative measures to ensure that the jury did not think he was referring to defendant's prior criminal history. See State v. Vallejo, 198 N.J. 122, 134-36 (2009). Although the judge here did not strike the testimony from the record, he gave curative instructions to assure the jury that the detective's testimony did not indicate that defendant had a criminal history prior to July 3, 2009. For these reasons, we conclude that Pastrana's fleeting reference to "prior history" did not lead to an unjust result.

V.

Defendant contends that the prosecutor's remarks during summation were improper and extremely prejudicial. We find no merit in this argument.

Prosecutors are afforded wide latitude in presenting summations. State v. DiFrisco, 137 N.J. 434, 474 (1994). Yet, a prosecutor is obligated "not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Further, it is as much the prosecutor's "duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935)). The prosecutor must ensure the comments in summation "are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999). Prosecutors should not make inaccurate legal or factual assertions and must confine their comments to evidence revealed during trial and reasonable inferences to be drawn therefrom. State v. Rodriguez, 365 N.J.Super. 38, 48 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

In evaluating whether prosecutorial misconduct requires reversal, we must determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing Ramseur, supra, 106 N.J. at 322). Usually, if no objection is made during summation, then the remarks will not be considered prejudicial. Id. at 323; State v. Ingram, 196 N.J. 23, 42 (2008). However, in particularly egregious circumstances, the prosecutor's comments may rise to the level of plain error, regardless of whether the defense objects. See, e.g., State v. Goode, 278 N.J.Super. 85, 89-92 (App. Div. 1994).

First, defendant challenges the prosecutor's reference to Martin, the driver of the Oldsmobile Aurora in the early morning of July 3, 2009. Defense counsel had argued that Gourgiotis stated that the robber wore a black shirt, but when defendant was arrested, both he and Martin were wearing white t-shirts. The prosecutor submitted that defendant changed his shirt after committing the crime but that Martin, as the driver during the robbery, did not need to change his shirt as he could not be identified by the victim. Defense counsel objected at the time. The prosecutor's reference to Martin appears to be a permissible response to defense counsel's remarks and a legitimate attempt to harmonize the evidence by means of reasonable inferences.

Even if the prosecutor's comment about Martin's reason for not changing his shirt was improper because it was not supported by the record, defendant has not shown how this passing remark denied him a fair trial. The remark was an attempt to explain defendant's behavior, not Martin's, and whether Martin was involved in the robbery was immaterial to the issue of defendant's guilt. Defendant has failed to establish that the prosecutor's brief statement about Martin prejudiced him such that it resulted in an unjust verdict.

Defendant also contends that the prosecutor made inappropriate comments about Gourgiotis during his summation, specifically:

She came in here and she described how emotional she was at the time. You could tell that she was emotional here. She was nervous, she was scared, she was upset then and now.
Did she seem like the type of girl that was going to lie when she got up there if she was mistaken at all - if she was unsure?

Defendant argues that the prosecutor improperly personally vouched for Gourgiotis and urged the jury to convict defendant out of sympathy for the victim. We find this argument unpersuasive as it is unsupported by the record.

Because defendant did not object to these remarks, they are reviewed for plain error. R. 2:10-2. The State is permitted to comment on witnesses' credibility during closing argument but may not personally vouch for a witness or refer to matters outside the record as support for the witness' credibility. State v. Walden, 370 N.J.Super. 549, 560 (App. Div.) (citing State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div. 1997)), certif. denied, 182 N.J. 148 (2004). The prosecutor's comments here explaining Gourgiotis' demeanor were permissible arguments about her credibility and were based on Gourgiotis' own statements about her emotional state on the night of the robbery. As such, we find nothing improper about these statements.

Further, in asking the jury whether Gourgiotis was the kind of person who would tell the truth, the prosecutor used a permissible rhetorical strategy and avoided vouching for her. In State v. Cagno, 409 N.J.Super. 552, 604 (App. Div. 2009), aff'd, 211 N.J. 488 (2011), we found acceptable a rhetorical strategy that "d[id] not assure the jury that the witness [was] credible, but instead ask[ed] the jury to find that the witness was credible."

Moreover, a prosecutor's improper remarks made during summation can be cured so long as the trial court "clearly instruct[s] the jury that the remarks made . . . were not evidence, but argument." State v. Smith, 212 N.J. 365, 409 (2012); see also Loftin, supra, 146 N.J. at 390 (accepting the presumption that juries follow a court's instructions). Here, the judge provided this instruction to the jury. In regards to the prosecutor's remarks in summation, "[o]ur task is to consider the 'fair import' of the State's summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (citations omitted). In the context of the entire summation, the prosecutor's brief remarks about which defendant complains were not clearly capable of producing an unjust result. Moreover, any prejudice that arose was cured by the trial court's clear instructions to the jury that the attorneys' remarks made in summation were not to be considered as evidence. See Smith, supra, 212 N.J. at 409.

VI.

Finally, defendant argues that he is entitled to a new trial because the verdict was against the weight of the evidence. We reject this claim for two reasons. First, a motion for a new trial on the ground that the verdict was against the weight of the evidence must be made before the trial court in order to preserve that issue on appeal. R. 2:10-1; see State v. Pickett, 241 N.J.Super. 259, 265-66 (App. Div. 1990) (finding that defendant's failure to file a formal motion rendered the issue improperly raised on appeal). Defendant did not make such a motion, thereby waiving this issue on appeal. Second, assuming arguendo that defendant made the appropriate motion or was otherwise justified in or excused from failing to do so, our "objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J.Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). We should not overturn a jury verdict merely because we may have found differently if faced with the same evidence. State v. Afanador, 134 N.J. 162, 178 (1993).

Applying these standards, we are satisfied that no manifest denial of justice occurred. Our task is to carefully consider the evidence and determine if a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J.Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993). The trial judge shall not, however, set aside the jury verdict as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there will be a manifest denial of justice under the law. Ibid. We find no basis to conclude that there was clear evidence that the jury was mistaken or prejudiced. Accordingly, we reject defendant's argument that the verdict was against the weight of the evidence.

Affirmed.


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