December 26, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
WALTER H. WILLIAMS, a/k/a WALTER WILLIAMS JR., JAMES W. WILLIAMS, WALT WILLIAMS, WALTER HERMAN WILLIAMS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-10-2363.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo and Kennedy.
Tried by a jury, defendant Walter H. Williams was convicted of third-degree eluding, N.J.S.A. 2C:29-2b, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). After appropriate merger, defendant was sentenced to a discretionary extended term, N.J.S.A. 2C:44-3a, of six years with three years of parole ineligibility. Defendant appeals, and we affirm.
According to the State's proofs, on September 17, 2009, State Trooper Brian Davern was dispatched to the residence of Valerie Williams, defendant's wife, for a "service call." Upon arrival, Davern noticed a tan and blue 1990 Ford Bronco parked at the residence that was registered under Valerie Williams' name. While at the residence, Davern encountered defendant's wife and her sister. He learned that defendant was not at the house and that he had outstanding warrants against him. To familiarize himself with defendant's physical characteristics, Davern obtained a copy of defendant's driver's license photo, stapled it to defendant's active warrants and then placed these documents in his clipboard to help identify defendant while on patrol.
On October 6, 2009, about three weeks after the service call, Davern was working a shift in the area of Newtonville near Route 54 and Sixth Road. While on patrol, Davern saw a male he recognized as defendant from the driver's license photo he had previously obtained and attached to his clipboard. Further, Davern watched defendant as he drove his wife's 1990 Ford Bronco into the parking lot of the Lopez Deli. Davern made a U-turn into the same parking lot, ran the registration of the vehicle, and determined that it was under Valerie Williams' name. When the driver exited the deli, Davern "had a clear look of [defendant's] face, " as it was still daylight. Based on his unobstructed observation, Davern positively identified defendant, using the driver's license photograph in his clipboard as well as other information gleaned from "multiple police reports" describing defendant's physical characteristics. After defendant reentered his vehicle and turned onto Sixth Road without using a turn signal, Davern drove immediately behind defendant and activated his overhead lights and sirens. Defendant, however, failed to stop and instead led Davern on a chase down Sixth Road, while frequently checking his rearview mirror. Defendant then accelerated down a dirt road, which leads to a wooded area behind his residence, parked the vehicle behind a dirt mound and abandoned his car, fleeing into the woods.
Davern searched the woods with reinforcements and then spoke with defendant's wife and mother-in-law, but he remained unable to locate defendant. The Bronco was towed and Davern returned to the police station, where he wrote a warrant for defendant for eluding and resisting arrest.
Several days later, on October 10, 2009, Washington Township Police Officer Giuseppe Morici arrested defendant while he was driving his wife's Bronco with his wife as a passenger. Prior to his arrest, defendant told Morici that he did not have his driver's license, but that his driving record should come up under the name "Willy Williams" with a date of birth of 8/28/66. When Morici told defendant he knew who he was, defendant admitted his name was Walter Williams and provided him with his actual date of birth. Based on the outstanding warrant for the eluding and resisting arrest charges, defendant was arrested and transported to the police station.
At trial, defendant presented an alibi witness, John Romolini, a "close friend" of thirty-five years, who testified that from around 9:00 a.m. until after midnight on October 6, 2009, he was with defendant doing plumbing work at Romolini's parents' home, and that he drove defendant to and from this location. Romolini, however, was unable to produce any pay stubs or timesheets in support of this claim. In rebuttal, Atlantic County Prosecutor's Office Detective Denise Manino testified that Romolini refused to cooperate in the investigation.
Evidently crediting the State's proofs, the jury convicted defendant of eluding and resisting arrest. This appeal follows, in which defendant raises the following issues:
I. THE REPEATED REFERENCES TO DEFENDANT'S OUTSTANDING ARREST WARRANTS AND OTHER BAD ACTS DENIED DEFENDANT A FAIR TRIAL.
II. THE TRIAL COURT IMPROPERLY PERMITTED THE PROSECUTOR TO SUGGEST THAT THE DEFENSE HAD THE BURDEN OF PROVING HIS ALIBI DEFENSE.
III. IN HER SUMMATION, THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF STATE WITNESSES.
IV. THE TRIAL COURT'S MISAPPLICATION OF AGGRAVATING FACTOR EIGHT AND IMPROPER DETERMINATION AS TO THE PROPRIETY OF AN EXTENDED TERM OF IMPRISONMENT RESULTED IN AN EXCESSIVE SENTENCE.
Defendant's challenge to Trooper Davern's testimony that defendant had active warrants must be considered in its proper context and against the following background.
At a pre-trial hearing on February 21, 2012, the court noted that the State and defendant originally agreed to the following stipulation regarding Davern's initial response to defendant's residence:
Upon being dispatched to a domestic incident . . . at or to the residence of the defendant's wife, Valerie Williams, Trooper Brian Davern responded to that location. An individual at the residence told Trooper Davern that the defendant fled the residence on foot prior to his arrival due to the fact that the defendant had multiple open warrants.
After reading this stipulation, defense counsel indicated she believed the stipulation had been "modified to . . . reflect municipal warrants." Before any argument could be reached regarding that issue, defense counsel further posited that a reference to a domestic incident "could be handled in a more general fashion" by labeling it "a call for service at a home." The court accepted that limitation in Davern's prospective testimony, and defense counsel further agreed that a stipulation on defendant's open warrants was necessary to provide the jury background information as to why Davern decided to pull defendant's photograph from the DMV database.
Instead of a written stipulation "[t]hat could get a little awkward when you have the very witness on the stand who is presumably able to say those things, " the court and both counsel agreed that the State would direct its questions so that Davern gave "the right answers." The court further indicated that "the concrete understanding would be that [Davern is] dispatched on a service call to the residence of the defendant's wife, Valerie Williams. Upon arriving there, is advised that the defendant left the scene." Defense counsel confirmed that the testimony should be that defendant was at the residence earlier, but left.
The court then directly addressed the expected testimony of the "existence of the warrants, " explaining that while defendant's knowledge of the warrants is not essential,
the trooper's knowledge of the warrants is, so it has to include that [Davern] is told by someone at the house that [defendant] has warrants because that's essential to understanding why he would then pursue, because, if the jury doesn't hear that, then they're left to speculate that there must have been a domestic violence incident that is reported that's not being discussed, and that's why he's chasing the defendant. So I think it's a benefit that the defense derives by the officer knowing that there are warrants and that's why he's pursuing him, not because of a complaint made by his wife.
To further protect defendant, the State also agreed not to elicit any testimony that Davern obtained the information about the warrants from defendant's wife, lest there be any speculation by the jury of marital discord. There was no restriction, however, that Davern could only testify that defendant's open warrants were for municipal or non-criminal matters.
On direct examination, Davern testified accordingly as to why he familiarized himself with defendant's physical characteristics and placed defendant's driver's license photograph in his clipboard:
Q: Could you please tell the court how you recognize [defendant's] photo?
A: That's the photo that I brought up on my New Jersey State Resources and I've kept a copy of that in my clipboard as I was patrolling on duty.
Q: So you copied this and put it in your patrol vehicle?
A: That's correct.
Q: Why did you do that?
A: Well, like I previously stated, [defendant] did have active warrants, several active warrants, and everybody in the neighborhood which I had prior contact with I would keep on my clipboard a picture of that individual and the active warrant stapled so just in case for identification purposes I could use that resource.
Q: So you did that and utilized that resource routinely?
A: That's correct.
Shortly thereafter, in a sidebar discussion, the court indicated that a limiting instruction was necessary to address defense counsel's concern over the references to defendant's open warrants. Immediately thereafter, the court issued the jury the following instruction:
Ladies and gentlemen, while we have a bit of a break in the testimony, I wish to advise you of something very important that you understand. The testimony of Trooper Davern concerning the existence of warrants for [defendant], that is information that generally would not be admitted into a trial because, under the law, we recognize rather correctly that someone should not be judged on whether they committed a crime that they're on trial for because they may have had past indiscretions of any kind, so this evidence is only being allowed in this trial to explain why Trooper Davern took the steps that he did; otherwise, he would have no way of [knowing] why he would even be interested in [defendant], who he was, and so forth. So that is the limited purpose that this evidence is being offered to show. You're not to draw any conclusions from it that he's a bad person, that he's a person of bad character, that he must have committed wrongdoing in the past and, therefore, if he did then, he must be guilty of the present offense, that would be totally absolutely incorrect use of the evidence and you should not engage in that kind of thinking.
After this instruction, still on direct examination, Davern explained how he identified defendant on October 6, 2009:
[Defendant] was heading southbound on Route 54 and I was on Sixth Road, where Sixth Road crosses 54. I saw the vehicle, the same vehicle which was at that initial service call, noticed the vehicle, at which point that vehicle turned into Lopez Deli. I made a u-turn going into the parking lot of Lopez Deli and I ran the registration of the vehicle which came back to Valerie Williams, at which point the driver of the vehicle, [defendant], exited the vehicle, walked into Lopez Deli and moments later walked out. When [defendant] walked out, I had a clear look of his face, he was facing me, and at that time, I was, while he was in the store, I was able to retrieve the picture that was located in my clipboard along with his active warrants to positively ID [defendant].
On cross-examination, in challenging the trooper's identification of defendant, defense counsel referred several times to defendant's active warrants:
Q: You indicated on direct that you had warrants and you had looked at the warrant and you knew there were warrants, right?
Q: And then you indicated on direct and just now again that you identified the car and you were certain it was [defendant] in the car?
Q. Right. Who you knew had warrants?
Q: And you didn't stop the car, you let it pull out into the traffic?
A: I wasn't at a position to pull over the vehicle.
Later in cross-examination, while challenging information in Davern's October 6, 2009 police report concerning defendant's physical characteristics, defense counsel elicited further testimony of defendant's prior contacts with police:
Q: And you pulled that information off of this is 10/6/2009, you pulled that information from where?
A: I entered that information into my report, ma'am.
Q: But how did you know it?
A: From his -- from his driver's license.
Q: Okay. So you're saying his driver's license says that he's 5'5, 150 pounds?
A: Right, and there's also -- I was initially after I went to the initial service call, there was multiple reports, state police reports, made with state police responding to [defendant's address] at which his identifiers did match up with those reports as well.
Despite having solicited this information herself, defense counsel objected at sidebar to the mention of "multiple reports." The State countered that defense counsel "can't attempt to discredit [Davern] unless you want to be careful where you're going." The court did not then intervene, but addressed the issue in its final charge to the jury.
Meanwhile, in her closing argument, defense counsel once again referenced defendant's open warrants in an attempt to challenge Davern's identification of defendant on October 6, 2009. Defense counsel argued that
[Davern] didn't know [defendant]. He had never seen him in person, and even though warrants gave him the basis to stop the car before it was ever moved, he just wasn't sure it was [defendant]. [Davern] didn't call into dispatch [that he's] stopping [defendant] at the Lopez Deli because he didn't know he was stopping [defendant]. He didn't know who he was looking at.
As noted, the court's final charge instructed the jury as to the proper use of the evidence of defendant's active warrants and prior contacts with the police:
Now you've heard evidence in this case that the defendant had warrants out for his arrest and also that he had prior state police contact on other occasions. Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other acts which might tend to show that he has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses. However, our rules do permit evidence of other conduct when the evidence is used for certain specific narrow purposes. In this case, evidence that the defendant had warrants out for his arrest has been allowed to explain a reason why Trooper Davern was attempting to stop him. That the defendant had been described by other troopers who had prior contact with him was also offered by Trooper Davern to explain that he had other sources of a description of the defendant's physical appearance. Whether the evidence does in fact demonstrate the reasons for its admission into evidence is for you to decide. You may decide that the evidence does not demonstrate such purposes for which it has been allowed and is not helpful to you at all. In that case, you should disregard the evidence. On the other hand, you may decide that the evidence does demonstrate such purposes and use it for those limited purposes. However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he's a bad person, that is, you may not decide that just because the defendant had warrants out for his arrest and had other contact with state police that he must be guilty of the present offenses. I have admitted the evidence only to help you decide the specific issues or questions that I described previously. You may not consider it for any other purpose and may not find the defendant guilty now simply because you have heard evidence that he committed other conduct.
Defendant now contends that Davern's testimony about defendant's active warrants and multiple police reports was improper under N.J.R.E. 404(b). We disagree.
Our review of a trial judge's determination on the admissibility of so-called other crimes or bad acts evidence is narrow and deferential, and thus limited to an "abuse of discretion" standard. See State v. Marrero, 148 N.J. 469, 483 (1997). This high standard was established because the trial court "is in the best position to engage in the balancing process" that admitting this type of evidence requires, so the court's determination is entitled to deference. State v. Frost, 242 N.J.Super. 601, 619 (App. Div.), certif. denied, 127 N.J. 321 (1990).
Despite his claim on appeal, defendant never requested a 404(b) hearing and instead agreed that Davern's knowledge of defendant's warrants was admissible to provide the jury background information as to why he decided to familiarize himself with defendant. And the three instances in which the State elicited testimony regarding defendant's active warrants were within the scope of the parties' agreement as to how this testimony could be used. Davern testified that he became familiar with defendant due to his open warrants, explained why he did so, and that he retrieved defendant's picture and active warrants from his clipboard to positively identify defendant.
This testimony was highly relevant to the contested issue of identity. See N.J.R.E. 404(b). Thus, to the extent the challenged evidence is even subject to a N.J.R.E. 404(b) analysis, it is clearly admissible to provide "'necessary background [information, ]' or, as otherwise stated, 'the need to avoid confusing the jury, ' non-propensity purpose." State v. Rose, 206 N.J. 141, 181 (2011) (quoting United States v. Green, 617 F.3d 233, 249 (3d Cir.), cert. denied, 131 S.Ct. 363, 178 L.Ed.2d 234 (2010)). Moreover, its relevance far outweighed any potential for prejudice. As noted, reference to defendant's active warrants was highly relevant to the disputed seminal issue of identity as it demonstrated Davern's familiarity with defendant as well as defendant's likely motive for eluding. Just as significant, the testimony was necessary to ward off potentially greater prejudice resulting from its omission. And whatever possible prejudice that may have inhered from its admission was immediately and effectively remediated in the court's multiple limiting instructions clearly restricting in the jury's use of this evidence and barring its consideration to establish defendant's propensity to commit the underlying offenses. The jury is presumed to have followed the court's instructions. State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, 133 S.Ct. 1504, 185 L.Ed.2d 558 (2013); see also State v. Loftin, 146 N.J. 295, 390 (1996).
In any event, defendant is precluded from objecting to the very evidence and procedure he asked the trial court to approve, and thereafter attack the same evidence and procedure on appeal. Such an argument is precluded by the "invited error" doctrine.
Under the "invited error" doctrine, a "'defendant cannot . . . request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Ramseur, 106 N.J. 123, 282 (1987) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). The invited error doctrine was established "'to prevent defendants from manipulating the system'" by leading the court into error. State v. Ramsey, 415 N.J.Super. 257, 265 (App. Div. 2010) (quoting State v. Jenkins, 178 N.J. 347, 359 (2004)), certif. denied, 205 N.J. 77 (2011).
Here, defense counsel made a strategic decision that its admission was necessary to avoid the far more prejudicial alternative of allowing the jury to speculate about domestic violence between defendant and his wife. Moreover, defense counsel used defendant's active warrants to attack Davern's identification of defendant in both her cross-examination of the trooper and her summation. Under these circumstances, where defendant: (1) agreed at the pre-trial hearing to allow Davern to testify about his knowledge of defendant's warrants; (2) made no objection to the court's limiting instructions as to the use of this evidence; and (3) actually used this evidence to challenge Davern's credibility, defendant cannot now be heard to complain about its admission.
We reach the same result concerning Davern's testimony on cross-examination that he learned defendant's physical characteristics from "multiple reports, state police reports, made with state police responding to" defendant's residence. Even more so than with the references to defendant's open warrants, defense counsel herself elicited testimony about these "multiple [police] reports, " and did so in an attempt to discredit Davern's physical description of defendant in his October 6, 2009 report. Specifically, defense counsel pressed Davern on how he was able to physically identify defendant on October 6, 2009 outside Lopez Deli, focusing on defendant's height. Davern attempted to limit his testimony to the information he had from defendant's driver's license, but when questioned further on this issue he explained that he had other information from multiple police reports that indicated defendant's physical characteristics.
As with defendant's open warrants, under the "invited error" rule, defendant cannot solicit the very evidence from which he now claims prejudice. See State v. McDavitt, 62 N.J. 36, 48 (1972); State v. Morse, 106 N.J.Super. 1, 4 (App. Div. 1968), aff'd, 54 N.J. 32 (1969). In any event, whatever minimal prejudice that may have resulted from Davern's answer was effectively cured by the court's clear and comprehensive limiting instruction in its final jury charge that specifically encompassed the challenged testimony. On this score, the court explained that Davern's testimony regarding defendant's multiple police reports was to be used only to establish that Davern had other sources regarding defendant's physical description and not as evidence of defendant's propensity to commit the underlying crime. Thus, not only was any error in allowing the admission of this evidence invited by defense counsel, it was remedied by the court's clear and precise jury instruction.
Defendant contends that the State's cross-examination of Romolini about his failure to produce documentary support for his alibi testimony as well as its production of a rebuttal witness who testified that Romolini was uncooperative in the State's investigation impermissibly suggested that defendant was required to prove his alibi defense. We disagree.
On cross-examination, the prosecutor asked Romolini if he had provided any written proof that defendant was working for him on the date in question, such as a timesheet or paycheck, in order to corroborate his alibi claim. Defendant objected to this question arguing at sidebar that this line of questioning "creates an inference [that defendant has] some obligation to produce documentation. The State had this witness's information, . . . [and] could have tried to locate this ahead of time." The court overruled the objection.
At the end of Romolini's testimony, the State produced Detective Manino as a rebuttal witness, and defendant did not object. Manino testified that she attempted to contact Romolini numerous times but he refused to call her back. She further testified that on January 23, 2012, she "called Mr. Romolini and . . . asked him if he would be able to come in sometime this week in order to talk to [her] regarding the statement he gave the defense. He then hung up on [her]. [She] attempted to call him back, he refused to pick up. [She] left him a message asking him to return [her] call."
We find no abuse of discretion in allowing the State to challenge defendant's alibi defense. "'[T]he scope of cross-examination 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). Under N.J.R.E. 6ll(b), "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." "An alibi witness, like any other witness, may be cross-examined with a view to demonstrating the improbability or even fabrication of his testimony." State v. Silva, 131 N.J. 438, 445 (1993) (internal quotation marks omitted).
Here, the State's cross-examination of Romolini was directly related to his testimony on direct and was used to impeach his credibility. In this regard, it is reasonable to expect that Romolini, as defendant's employer, would be able to produce some indicia or documentation of defendant's work for him, such as a paycheck stub, copy of a check or timesheet. The witness's failure to maintain such employment records may properly be considered in evaluating the plausibility or truthfulness of his testimony.
Similarly, the State's calling Detective Manino as a rebuttal witness to address Romolini's pre-trial refusal to cooperate was permissible. As defendant's close friend and employer, it would be reasonable to expect that Romolini would cooperate with the State's investigation and provide proof that defendant was working at the time of the charged offenses. His refusal to do so may be considered in evaluating the witness's credibility. See Silva, supra, 131 N.J. at 448 n.1, 449. The prosecutor's production of Manino was further justified to refute the defense contention that the State should have sought the requested documentation prior to trial.
Contrary to defendant's assertion, neither the State's cross-examination of Romolini nor its production of a rebuttal witness suggested a shifting of the burden of proof. However, to the extent any misconception may have arisen, it was cured by the court's charge, which clearly instructed the jury that
[t]he burden of proving each element of the charge beyond a reasonable doubt is on the State. The burden never shifts to the defendant. Even though the defendant may offer a defense or call witnesses, it does not mean the burden of proof shifts to the defendant. The defendant has no obligation or duty to prove his innocence or offer any proof relating to his innocence.
Later, the court instructed the jury, specifically regarding defendant's alibi defense, that "the burden of proving the defendant's presence [on October 6, 2009] beyond a reasonable doubt is on the State. The defendant has neither the burden nor duty to show  he was somewhere else at the time and could not have committed the offense."
In sum, there was no error in allowing the State to cross-examine Romolini or in producing a rebuttal witness. Any claimed misconception that defendant had the burden of proving his alibi defense was cured by the court's clear instruction to the contrary.
Defendant next contends that three comments by the prosecutor in summation deprived him of a fair trial. Specifically, defendant challenges the prosecutor's comparison of the relative ability of lay persons and police officers to identify suspects; her assertion that Officers Davern and Morici had no motive to fabricate their testimony; and her reference to Morici's "very credible testimony." We find none of these comments, considered individually or cumulatively, require reversal of defendant's conviction.
Defendant's challenges must be considered in their proper context and against the defense's summation, which focused primarily on the claimed unreliability of Davern's identification. In short, defense counsel argued that Davern made a "fleeting identification resulting from an erroneous assumption"; mistakenly believed he saw defendant because the suspect was in his wife's vehicle; and that he actually observed a 5'9" black male and not defendant, who is only 5'4". Defense counsel further argued that Davern did not immediately attempt to stop defendant because he had "uncertainty" as to whether he saw defendant outside Lopez Deli.
In response, the prosecutor, in her summation, stated that "[t]here has been some discussion as to the ability of individuals, lay people versus police officers or those individuals who are employed in professions that by the [sheer] nature --[.]" Defense counsel promptly objected because there was no expert testimony that police officers have different abilities or skills. The court agreed and confined the prosecutor's argument to the "training that [Davern] had" for field identifications. Consequently, after the sidebar conference, the prosecutor asserted that "when [Davern] testified before you yesterday morning, he was asked by the State as to any particular training, specifically as to the job skill he must employ in making identification[s], and he testified . . . part of his training involved being given random and hypothetical scenarios during which he was required . . . to make identifications."
The State continued its closing argument by commenting that the jury should not abandon its common sense and logic, and should think about "[w]hat possible fathomable motive exists for Trooper Davern or Officer Morici to fabricate or misrepresent or further a mistaken identity." Defendant did not object to this comment.
Lastly, in summing up the State's direct evidence against defendant, the prosecutor mentioned that "[w]e also know from the very credible testimony of Officer Morici who as I mentioned earlier --[.]" Defense counsel immediately objected and requested a sidebar conference, arguing that this statement was improperly vouching for the credibility of the State's witness. The court permitted the prosecutor to "[r]ephrase [the statement to] I submit" Officer Morici was credible.
During their summation, "[p]rosecutors are afforded considerable leeway . . . as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). "Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Ibid. However, "'the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done.'" Id. at 83 (quoting Ramseur, supra, 106 N.J. at 320).
In reviewing whether prosecutorial remarks during an opening statement or summation requires reversal, we should determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." Ibid. To make this determination, we must "examine any timely and proper objections made by defendant, whether the remarks were withdrawn and how the trial court dealt with any improper remarks, including issuance of any curative instructions." State v. Hawk, 327 N.J.Super. 276, 281 (App. Div. 2000) (citing Ramseur, supra, 106 N.J. at 322-23).
None of the challenged comments, alone or together, deprived defendant of a fair trial. The prosecutor's remark comparing the ability of police officers and lay persons in making identifications was objected to and remediated immediately. Before the prosecutor could even complete her statement, the court intervened, limiting the State's reference to the officer's relevant training based on the officer's prior testimony during voir dire, and thus "reasonably related to the scope of the evidence presented." Frost, supra, 158 N.J. at 82. The prosecutor complied.
Moreover, it was not "plain error" for the court to allow the prosecutor to assert that Davern and Morici do not have a motive to lie. Although "it is improper for a prosecutor to contend in summation that the police had no motive to lie[, ]" State v. R.B., 183 N.J. 308, 331-32 (2005), the comment, standing alone, does not require a new trial. See id. at 332 n.4, 333. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." 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). "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Ibid. Further, defendant's failure to raise an objection in the face of prosecutorial misconduct "'deprives the court of an opportunity to take curative action.'" R.B., supra, 183 N.J. at 333 (quoting Frost, supra, 158 N.J. at 84). We are therefore satisfied that this comment had no effect on the outcome of defendant's trial and did not amount to plain error.
Lastly, contrary to defendant's contention, the prosecutor did not vouch for Officer Morici's credibility. A prosecutor is permitted "to argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Bradshaw, 392 N.J.Super. 425, 437 (App. Div. 2007), aff'd on other grounds, 195 N.J. 493 (2008) (internal quotation marks omitted). Here, the prosecutor did not state her personal belief, but simply described Morici's testimony as "very credible." The State's general assertion constituted fair comment.
In sum, the challenged remarks were brief, fleeting and in response to defense counsel's summation attacking the credibility of Davern's identification. The prosecutor corrected herself both times defendant objected, and the defendant did not object to the remaining comment. Moreover, there was strong evidence of defendant's guilt and the court provided proper jury charges instructing the jury how to evaluate and weigh Davern's identification and admonishing that "[a]rguments, statements, remarks, openings, summations by the attorneys are not evidence and must not be regarded as evidence."
Lastly, defendant argues his sentence was excessive, claiming the court improperly imposed a discretionary extended term, N.J.S.A. 2C:44-3, and improperly considered a fourth aggravating factor (eight), N.J.S.A. 2C:44-1a(8). We disagree.
Our review of a defendant's sentence is limited. State v. Cassady, 198 N.J. 165, 180 (2009). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
Under N.J.S.A. 2C:44-3a, the trial court is permitted, upon the State's application, to "sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if" the court finds:
The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
The Court, in State v. Pierce, 188 N.J. 155 (2006), provided guidance for sentencing defendants pursuant to the persistent offender statute. First, the trial court must determine whether the statutory requirements have been met. Id. at 169. If the court finds a defendant is eligible for an extended term, the sentencing discretion "reaches from the bottom of the original-term range to the top of the extended-term range." Ibid. Therefore, for a conviction of a third-degree crime, a defendant who is eligible for an extended term under N.J.S.A. 2C:44-3a can be sentenced to a term of imprisonment between three and ten years. N.J.S.A. 2C:43-6a(3); N.J.S.A. 2C:43-7a(4). In determining the length of the base term of the extended term, the court must weigh the aggravating and mitigating circumstances, including "consideration of the deterrent need to protect the public." Pierce, supra, 188 N.J. at 168. In addition, as part of an extended term, "the court may fix a minimum term" of parole ineligibility "not to exceed one-half of the" overall prison term. N.J.S.A. 2C:43-7(b). We review under an "abuse of discretion" standard the trial court's decision to sentence a defendant under these provisions. Pierce, supra, 188 N.J. at 169-70.
Here, it is undisputed that defendant was a persistent offender and was thus "discretionary extended term eligible." In imposing an extended term, the sentencing court first considered defendant's extensive criminal history, including his "19 arrests, seven indictable convictions . . . [and] at least three times sentenced to [S]tate prison." The court found aggravating factors (3), (6), (8) and (9) and no mitigating factors. The court further held that "[t]he nature of these charges and the defendant's history support the need for protection of the public and, therefore, an extended term of imprisonment." The court then imposed a six-year extended sentence with three years parole ineligibility.
We find this sentence "'a reasonable one in light of all the relevant factors considered by the court.'" Cassady, supra, 198 N.J. at 180 (quoting State v. Natale, 184 N.J. 458, 488 (2005)). The court's findings in support of aggravating factors (3), (6), and (9) were well-supported by defendant's extensive criminal record, which clearly indicates that defendant was at risk to recidivate and is in need of specific deterrence. Defendant's criminal history also supported the need for protection of the public, and an extended term was appropriate.
To be sure, the sentencing court misapplied aggravating factor (8) — that "defendant committed the offense against a police or other law enforcement officer" — as double counting an element of defendant's eluding and resisting arrest convictions. See N.J.S.A. 2C:29-2b; State v. Kromphold, 162 N.J. 345, 353 (2000). But even discounting this aggravating factor, defendant's sentence — only one year above the maximum for a third-degree offense, and at the lower end of the extended term range between three and ten years — was fair and reasonable given the well-supported findings of three aggravating and no mitigating factors.