September 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ERIC JAMES, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-10-0966.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ms. Liebman and Armando B. Suarez, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Yannotti, Ashrafi and St. John.
Defendant Eric James was tried before a jury and found guilty of aggravated assault, attempting to cause serious bodily injury, and certain other offenses. The trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a), and sentenced defendant to sixteen years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered on December 12, 2011. For the reasons that follow, we affirm.
Defendant and Reginald Felton (Felton) were charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault, bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); fourth-degree unlawful possession of a weapon, a wooden table leg, under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six). Felton also was charged with fourth-degree obstructing the administration of law or other governmental function, contrary to N.J.S.A. 2C:29-1 (count seven).
Defendant and Felton were tried together. At the trial, the State presented evidence which established that in the early morning hours on June 19, 2009, police officers Paul Tillotson (Tillotson) and Orlando Barros (Barros) responded to a report of a fight in the City of Elizabeth. Tillotson observed two black males and a white man, who was later identified as Steven Quigley (Quigley).
Tillotson saw one of the black males pulling Quigley out of his car by his wrists. Tillotson saw the other male striking Quigley over the head with a wooden table leg. According to Tillotson, Quigley was bleeding "heavily from the head." The officers sounded their air horn to stop the attack. The two black males looked in the officers' direction and took off running.
Tillotson chased the suspects on foot. Barros stayed in the police car and drove around the block to try to intercept the suspects. Quigley was told to remain on the scene because police headquarters had been informed about the incident and other officers would be responding. Quigley waited awhile but then drove himself to the hospital, where he was examined by a doctor and received thirteen stitches to his head.
The suspects ran toward an empty lot and then into the area behind some homes. Tillotson lost sight of the suspects because there were a number of trees and bushes in the area. When other officers arrived, Tillotson asked them to search the empty lot. He did not know whether the suspects were hiding in the tall grass or whether they had entered one of the houses in the immediate vicinity.
The officers observed an abandoned house in the search area. All of the first-floor and basement windows were boarded up; however, the board on one of the basement windows had been pulled away. Tillotson and other officers entered the house through that window and began to search the premises. They found Felton in a second-floor bedroom. Defendant was found in the attic.
Tillotson and Barros testified that they recognized Felton as the man they saw pulling Quigley out of his car. Tillotson and Barros further testified that they recognized defendant as the person they observed striking Quigley on the head with a wooden furniture leg.
After defendant and Felton were secured, they were placed in patrol vehicles and transported to police headquarters. Tillotson and another officer continued to search the surrounding area for evidence. They found a wooden table leg in a nearby empty lot. Samples of the blood found on the table leg were tested. The DNA profile generated from those samples matched Quigley's DNA profile.
Defendants were found not guilty on count one, robbery; and count two, carjacking, as well as certain lesser-included offenses on these counts. Defendants were, however, found guilty on count three, aggravated assault, serious bodily injury; count four, aggravated assault, bodily injury with a deadly weapon; count five, unlawful possession of a weapon; and count six, possession of a weapon for an unlawful purpose. In addition, Felton was found guilty of count seven, obstructing the administration of law or other governmental function.
Defendants were sentenced on December 12, 2011. The judge granted the State's motion to impose an extended term upon defendant as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). The judge merged counts three and four and sentenced defendant to sixteen years of imprisonment, with a period of parole ineligibility as prescribed by NERA, along with a three-year period of parole supervision upon his release. The judge also merged count five with count six, and imposed a concurrent five-year term on that count. Appropriate penalties and fines were also imposed. Defendant's appeal followed. Felton also appealed. In an opinion also filed this date, we have affirmed Felton's conviction and sentence. State v. Felton, Docket No. A-3529-11. Defendant raises the following arguments for our consideration:
THE CUMULATIVE EFFECT OF REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DURING SUMMATION WARRANTS A REVERSAL OF MR. JAMES' CONVICTIONS. (Partially raised below).
THE TRIAL COURT VIOLATED MR. JAMES' SIXTH AMENDMENT RIGHT TO A TRIAL BY JURY BY RELYING ON FACTORS OTHER THAN PRIOR CONVICTIONS IN DECIDING TO IMPOSE A DISCRETIONARY EXTENDED TERM. (Not raised below).
DEFENDANT'S SIXTEEN YEAR SENTENCE IS INVALID BECAUSE HIS EQUALLY CULPABLE CO-DEFENDANT RECEIVED AN EIGHT YEAR SENTENCE.
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Defendant argues that he was denied a fair trial because of the cumulative prejudicial effect of certain remarks made by the assistant prosecutor in his summation. We do not agree.
"Prosecutors are expected to assert vigorously the State's case and are given considerable leeway in delivering their summations." State v. Daniels, 182 N.J. 80, 96 (2004) (citing State v. Smith, 167 N.J. 158, 177 (2001)). "Not every improper prosecutorial statement will warrant a new trial." Ibid. A reviewing court may only reverse a criminal conviction if the prosecutor's comments "were 'so egregious that [they] deprived the defendant of a fair trial.'" Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999) (alteration in original)).
The reviewing court should determine "'(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" Id. at 96-97 (quoting Smith, supra, 167 N.J. at 182). If defense counsel did not object to the remarks, they generally will not be deemed prejudicial. Frost, supra, 158 N.J. at 83-84 (citing State v. Ramseur, 106 N.J. 123, 323 (1987)).
Defendant contends the assistant prosecutor improperly told the jury that when Tillotson and Barros pulled up to Quigley's car, they recognized the defendants. The State concedes the assistant prosecutor mistakenly suggested that the officers recognized defendants when they approached the victim's vehicle. Defense counsel, however, did not object to the comment.
Moreover, the trial judge twice instructed the jurors that their own recollection of the evidence controlled, regardless of anything the attorneys or the court said in discussing the evidence. We are satisfied that defendant was not prejudiced by the assistant prosecutor's erroneous comment.
Next, defendant contends that the assistant prosecutor improperly bolstered Tillotson's and Barros' identifications by stating that the identifications are generally "some of the most powerful evidence" in a criminal case. Defense counsel did not object. Thus, the comment should not be deemed prejudicial. Furthermore, the comment could reasonably be viewed as a fair comment on the identification evidence presented in this case.
Defendant also argues the assistant prosecutor erroneously stated that Quigley had identified defendants as his attackers, because Quigley never made any in-court or out-of-court identifications. Defense counsel objected to the remark and sought a mistrial. The trial judge denied the application and instructed the jury to disregard the statement. The assistant prosecutor then told the jury that Quigley had never identified defendants as the persons who attacked him.
Moreover, in response to a question from the jury during its deliberations, the judge told the jurors, "All parties to this case . . . agree there was absolutely no testimony during this trial by Mr. Quigley identifying either of the defendants as his attackers." We are satisfied that, in view of the judge's curative instructions, the assistant prosecutor's statement, and the answer to the jury's question, defendant was not prejudiced by the assistant prosecutor's remark.
Defendant additionally argues that the assistant prosecutor improperly implied that he was a "desperate, homeless vagabond who had a motive to attack someone[.]" In support of this argument, defendant cites the assistant prosecutor's comment that defendants knew about the open window in the abandoned house where defendants were eventually found. The assistant prosecutor stated that "they've been in that house."
Defense counsel objected to this comment and moved for a mistrial, arguing that there was no evidence to support the remark and that it implicated defendant's right to remain silent. The trial judge denied the motion. The judge found that the statement was a fair comment on the evidence.
The judge noted there was no direct evidence that defendants had been in the abandoned house. However, an inference could be drawn that they had been in the house previously, based on the evidence that defendants ran immediately to the window of the house. The judge said it was for the jury to determine the weight to be given to the evidence and defendants were not prejudiced by the assistant prosecutor's comment. The record supports the judge's findings.
Defendant further argues that the assistant prosecutor improperly misstated the law on accomplice liability. However, when charging the jurors, the judge said he was going to instruct them on the applicable principles of law. The judge stated that the jury
must accept and apply this law for this case as I give it to you in this charge. Any ideas you have of what the law is, or what the law should be, or any statements by the attorneys as to what the law may be, must be disregarded by you if they are in conflict with my charge.
The judge's instructions also included a thorough statement concerning accomplice liability. The judge thus appropriately addressed any misstatement the assistant prosecutor may have made on the law.
Defendant additionally contends the assistant prosecutor improperly inflamed the jury by stating that "this case is about the right of any person to be free from harm, to be protected from the individuals who do things like this. It affects us in our community. That's what this case is about." We are not convinced these arguments were likely to inflame the jury. Indeed, defense counsel did not object to these remarks. Therefore, we are satisfied the assistant prosecutor's comments were not prejudicial.
Defendant also contends the assistant prosecutor improperly asked the jurors whether they really wanted to see defendants leave the court as free men after their verdict. This remark was made in response to a comment by Felton's attorney, who stated that it was his "hope that when you go into that jury room and . . . you'll come back out . . . allow me to walk out of those doors with my client as a free man."
A reviewing court "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" State v. Munoz, 340 N.J.Super. 204, 216 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed.2d 1, 11 (1985)), certif. denied sub. nom., State v. Pantoja, 169 N.J. 610 (2001). Felton's counsel invited the assistant prosecutor's response and that response did not prejudice defendant.
We are accordingly satisfied that, individually or cumulatively, the assistant prosecutor's comments did not prejudice defendant's right to a fair trial.
Defendant also challenges his sentences. He contends that the sentencing judge violated his right to a trial by jury, as guaranteed by the Sixth Amendment to the United States Constitution, by relying upon factors other than his prior convictions in imposing the sentences.
Here, the sentencing judge determined that defendant was eligible for an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), and weighed the aggravating factors and lack of mitigating factors in determining the sentences to be imposed. Defendant contends the judge erred by commenting that "society needs to be protected from this unlawful behavior" and by relying upon defendant's history of substance abuse. We disagree.
The judge's first comment was based on the offenses of which defendant was convicted and it was entirely consistent with the judge's finding of aggravating factor nine, which pertains to the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(9). The judge's second comment was also based on defendant's criminal record and it supported the judge's finding of aggravating factor three, which pertains to the likelihood defendant will re-offend. N.J.S.A. 2C:44-1(a)(3).
Defendant further argues that his sentence is invalid because he received a sentence of sixteen years, while Felton received an eight-year sentence. Defendant says the judge erred by assuming he was more culpable than Felton, and the judge could have imposed uniform sentences even though he was extended-term eligible. Again, we disagree.
There is no impermissible disparity between the sentences imposed on defendant and Felton. Both Tillotson and Barros testified that they saw Felton pulling Quigley out of his car, while they saw defendant striking Quigley on the head with the wooden table leg. Furthermore, defendant and Felton have substantially different criminal records. Defendant has at least six prior indictable convictions and at least nine nonindictable convictions, while Felton has two prior indictable convictions and six non-indictable convictions.
Defendant further argues that the sentencing judge should have found mitigating factor eleven (defendant's imprisonment will cause excessive hardship to him or his dependents). N.J.S.A. 2C:44-1(b)(11). He contends that a proper balancing of the aggravating factors and mitigating factor eleven does not support a sixteen-year sentence.
We are convinced, however, that the record fully supports the judge's findings of aggravating factors three, six and nine, and the judge did not err by refusing to find mitigating factor eleven. As the judge noted at sentencing, defendant's incarceration will not result in any hardship to himself or his dependents, beyond that experienced by any defendant who is incarcerated.
We are therefore convinced that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).