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State v. Crouch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Apr 29, 2015
DOCKET NO. A-2008-12T3 (App. Div. Apr. 29, 2015)

Opinion

DOCKET NO. A-2008-12T3

04-29-2015

STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHANE CROUCH, a/k/a SHANE CROCH, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy, of counsel and on the brief). John J. Hoffman, Acting Attorney General of New Jersey, attorney for respondent (Sarah Ross, Deputy Attorney, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-05-1147. Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy, of counsel and on the brief). John J. Hoffman, Acting Attorney General of New Jersey, attorney for respondent (Sarah Ross, Deputy Attorney, of counsel and on the brief). PER CURIAM

Defendant, Shane Crouch, was convicted of third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and 2C:35-5b(3), third-degree distribution of cocaine, N.J.S.A. 2C:35- 5a(1) and 2C:35-5b(3), third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Judge Albert J. Garofolo sentenced defendant to an extended term of seven years, with a mandatory three and one-half years of parole ineligibility. We affirm.

Defendant raises the following arguments:

POINT I: THE TRIAL COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY ON HOW TO EVALUATE THE IDENTIFICATION OF THE DEFENDANT, AS REQUIRED BY THE NEW CHARGE ADOPTED AND EFFECTIVE IN NEW JERSEY, DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).



POINT II: THE TRIAL JUDGE ERRED TO THE DEFENDANT'S PREJUDICE BY FAILING TO ALERT THE JURY TO THE INHERENT UNRELIABILITY OF ORAL STATEMENTS. (Not Raised Below).



POINT III: THE MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amend. VI, XIV; N.J. CONST., Art. I, para. 1, 9, and 10. (Partially Raised Below).



A. The prosecutor implied that the defendant was guilty of prior bad acts.



B. The prosecutor vouched for his chief witness and denigrated the witness for the defense as a liar.



POINT IV: THE EXTREME DISPARITY BETWEEN DEFENDANT'S SENTENCE AND THAT OF HIS CO-DEFENDANT, WHO PLEADED GUILTY TO THE SAME
OFFENSES, REQUIRES A REDUCTION OF SENTENCE UNDER STATE V. ROACH.

Lieutenant James Sarkos of the Atlantic City Police Department (ACPD) described the drug deal that is the basis for this appeal as follows. On the evening of March 16, 2012, into the morning of March 17, 2012, Lieutenant Sarkos and Sergeant Rodney Ruark of the ACPD were working undercover. While stopped at a traffic light, Lieutenant Sarkos noticed an individual later identified as co-defendant, Jermaine Bagwell (Bagwell). Lieutenant Sarkos and Bagwell "made eye contact" and initiated a drug transaction. Bagwell assured the officers that he was able to procure them drugs, and then got into the car. Lieutenant Sarkos gave Bagwell twenty dollars in exchange for an agreed upon amount of cocaine. Bagwell placed the money in his pocket and directed the officers to drive to a nearby rooming house.

When they got to the house, Lieutenant Sarkos and Bagwell walked to the rear of the building while Sergeant Ruark remained in the vehicle. Bagwell shouted "CMD" which, Bagwell himself, admitted and testified meant Camden, which is where he was from, and how he was known. A man shouted back from a second story window. Bagwell then climbed the fire escape stairs in back of the building to the second-floor. A tall black male with no shirt, but shorts on, came out of the second-floor door and spoke to Bagwell while Lieutenant Sarkos stayed at the bottom of the stairs.

Moments later, Bagwell yelled for Lieutenant Sarkos to climb the steps. Lieutenant Sarkos described his encounter with defendant as follows:

I'm standing at the bottom of the steps. Jermaine Bagwell is up on the first floor on the fire escape, tells me to come up the steps. As soon as I get to the top of the steps, I'm within two feet of both these individuals and I look and I immediately recognize this individual who opens the door to be Shane Crouch.

Regarding his ability to identify Crouch, Lieutenant Sarkos noted that the lighting in the building was "decent" at that time, and that there were "lights on the back of the building." Lieutenant Sarkos testified that he recognized defendant from the "normal course of being around[,]" and that he was concerned he would be recognized. He also recalled being nervous, as this was an impromptu operation that deviated from his original assignment.

Thereafter, at defendant's instruction, Lieutenant Sarkos, Bagwell, and defendant entered the rooming house's common bathroom, where a third, unidentified individual was also present. When the parties entered the bathroom, this third male turned out the lights.

Discussing his ability to see, Lieutenant Sarkos testified that even with the lights off, he was able to distinguish between defendant, Bagwell, and the third male. He recalled that there were "still lights from the hallway coming in from the door," and that there was "light coming in from the window, outside lights."

Describing the drug transaction that is the subject of this appeal, Lieutenant Sarkos witnessed Bagwell hand defendant a twenty dollar bill. Defendant took the money, exited the bathroom, and returned thirty seconds later with "two little green tinted zip lock baggies." Defendant handed Bagwell the two bags, which he placed in his pocket.

After the transaction was complete, Lieutenant Sarkos and Bagwell exited the rooming house, returned to the vehicle, and drove away. Bagwell removed one of the two bags from his pocket and gave it to Lieutenant Sarkos. Sergeant Ruark then signaled the "backup officers to move in." As a result of the events that evening, Bagwell was arrested. Defendant was arrested ten days after the drug transaction occurred.

While defendant's arrest was being effectuated on March 26, 2012, he asked Lieutenant Sarkos what he was being charged with. Lieutenant Sarkos replied that he was being arrested "for possession of cocaine, possession of cocaine with intent to distribute and for distributing cocaine for selling me drugs about a week ago right here." In response, defendant commented "[C]'mon man. I'm not the main guy. All I did is go down the hallway and get it to you." Defendant denies making this statement.

Here, for the first time on appeal, defendant argues the trial court failed to properly instruct the jury on how to evaluate the identification evidence offered by Lieutenant Sarkos. Specifically, he challenges the trial court's failure to use a revised model jury instruction, which was implemented in light of the Supreme Court's decision in State v. Henderson, 208 N.J. 208 (2011), and became effective two days before the conclusion of his trial.

In Henderson, a defendant challenged an identification on the grounds that police officers "unduly influenced the eyewitness." Id. at 217. The witness initially expressed doubt about the identity of the perpetrator, but was able to confidently identify the defendant after a meeting with investigators. Id. at 223-24. The Court was concerned that numerous factors could affect the ability of a witness to remember and identify perpetrators of crimes and result in misidentifications, and ordered an amplified jury charge. Id. at 298-99.

Here, without having objected at trial, defendant challenges the court's failure to give the enhanced charge. "Where there is a failure to object, it may be presumed that the instructions were adequate." State v. Morias, 359 N.J. Super. 123, 134-35 (App. Div.) (citing State v. Macon, 57 N.J. 325, 333 (1971)), certif. denied, 177 N.J. 572 (2003). Under those conditions, we should only reverse if we find plain error.

We are not persuaded by defendant's argument that the failure to provide the new charge resulted in an unfair trial. Unlike Henderson, where there was a photo array, we are dealing with an on-the-spot recognition of defendant. Lieutenant Sarkos was clearly familiar with Crouch, and testified that he immediately recognized him when he opened the door.

In addition, the jury was made aware of the variables that could affect his identification during direct and cross-examination, as well as defense counsel's closing argument. The fact that Lieutenant Sarkos was nervous, the quality of light, the duration of time, and Lieutenant Sarkos' distance from defendant at the time of identification were all laid out before the jury. Although these variables were not specifically denoted in the charge, they were specifically brought to the jury's attention. Therefore, we find that the defendant was not deprived of a fair trial. See State v. Walker, 203 N.J. 73, 90 (2010).

Defendant next argues the court should have instructed the jury on how to evaluate his out-of-court statement pursuant to State v. Kociolek, 23 N.J. 400, 421-22 (1957). Defendant did not object to the court's failure to issue a Kociolek charge at trial, and we again employ the plain error standard in reviewing this claim. See R. 2:10-2.

Kociolek, supra, requires that a jury be instructed to "receive, weigh and consider such evidence with caution," in view of the generally recognized risks of inaccuracy associated with oral statements. 23 N.J. at 421. In State v. Jordan 147 N.J. 409, 428 (1997), the Supreme Court held that, given the risk of inaccuracy in communicating oral statements and risk of misunderstanding by the listener, a Kociolek charge should be given, whether requested or not, whenever a defendant's out-of-court statements are admitted into evidence.

While emphasizing that a Kociolek charge is required, the Jordan Court held that a failure to give it "is not reversible error per se." Id. at 430. Instead, the facts of the case may show that such an omission was not capable of producing an unjust result, as where there was independent evidence of the defendant's guilt. Extensive cross examination of the witnesses may likewise suffice. See State v. Harris, 156 N.J. 122, 183 (1998).

Here, defendant's statement that, "[C]'mon man. I'm not the main guy. All I did is go down the hallway and get it to you" was admitted into evidence. This, however, was not the most compelling evidence against the defendant and we disagree that this statement was "crucial to the state's case." Independently, the testimony of Lieutenant Sarkos describing the crime itself provided sufficient basis for defendant's conviction. We are satisfied that an analysis of the evidence of defendant's guilt shows that the court's failure to issue a Kociolek charge was not capable of producing an unjust result.

In POINT III of defendant's brief, he argues that "multiple instances of prosecutorial misconduct deprived [him] of his constitutional rights to due process and a fair trial." We disagree.

"'A defendant is entitled to a fair trial but not a perfect one.'" State v. Loftin, 146 N.J. 295, 397 (1996) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)). Our Supreme Court "has held that prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).

Defendant first argues the prosecutor committed misconduct by calling him a "drug dealer" in opening statements. He contends that by doing so, the prosecutor was implying that defendant was guilty of the transaction for which he was charged, and for other criminal activity as well. Defendant objected to this characterization at trial.

With regard to the characterization of being a "drug dealer," a limiting instruction was given during the course of Lieutenant Sarkos' testimony. The judge told the jury:

I'm concerned in this case that you may speculate or infer that Lieutenant Sarkos' familiarity with Shane Crouch may be based on previous arrests or investigations of criminal activity on the part of Mr. Crouch. There is no such evidence in this case and you are instructed to draw no such inference. You should know that it is very common for police, especially with the number of years that Lieutenant Sarkos has served, to make it their business to know people in the city and in particular the neighborhoods where they patrol.



Additionally, in his opening statement [the prosecutor] made reference to the defendant being a drug dealer. His characterization of him is based solely on his allegations pertaining to this case and should not be taken as inferring knowledge or belief on his part that he has committed before or since any offenses involving controlled dangerous substances.

We find the court's limiting instruction was clear and strong, and that it was not "too late" as defendant suggest. The prosecutor's statement did not substantially prejudice "defendant's right to have a jury fairly evaluate the merits of his defense." See State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted). The prosecutor's remarks were neutralized through the curative instruction.

Defendant also argues that the prosecutor committed misconduct by calling this case "a tale of two witnesses[,]" arguing that Lieutenant Sarkos was telling the truth while Bagwell was lying. Defense counsel did not object to these statements.

In Frost, supra, the Supreme Court stated that if no objection was made to improper remarks, the remarks will not be deemed prejudicial. 158 N.J. at 83 (citing State v. Ramseur, 106 N.J. 123 (1987)). "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action." Id. at 83-84 (citing State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997)).

Here, defendant cites to Frost as a case where convictions were reversed when a prosecutor made improper remarks. However, Frost was not decided under the plain error rule. There, defense counsel made timely objections to the instances of prosecutorial misconduct, which is distinguishable from the present case. Id. at 86; see also State v. Staples, 263 N.J. Super. 602, 605 (1993).

In this case, we find no plain error. As the Supreme Court stated in Frost,

Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. Harris, supra, 141 N.J. at 559.



[Frost, supra, 158 N.J. at 82.]
The Frost Court then recited Justice Clifford's observations in his dissent in State v. DiPaglia, 64 N.J. 288 (1974), stating that:
Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented.



[Frost, supra, 158 N.J. at 305 (Clifford, J. dissenting) (citations omitted).]

In this case, where credibility of the witnesses was at issue, and was a question for the jury, the prosecutor simply said the officer was telling the truth and the co-defendant was not. He did not state he personally believed the officer, which would clearly cross into improper vouching for the witness. We agree that the prosecutor could have more properly stated the jury should find the officer was truthful based on the evidence. However, we hold that while the prosecutor's comments may not have been proper, they were not egregious and did not constitute plain error.

Finally, defendant challenges the length of his sentence. He complains that Bagwell, who pled guilty to the same offenses, received a much lighter sentence. Defendant argues that the extreme disparity requires a reduction of his sentence under State v. Roach, 146 N.J. 208 (1996).

On appeal, sentencing determinations are subjected to a limited review. State v. Roth, 95 N.J. 334, 364-65 (1984). "While an appellate court has . . . the power to modify any criminal sentence that is manifestly excessive . . . the power is one which should be exercised sparingly and only upon a 'clear showing of abuse of discretion.'" State v. Whitaker, 79 N.J. 503, 512 (1979) (quoting State v. Velazquez, 54 N.J. 493, 495 (1969)).

We employ a three-part test to determine whether there has been such an abuse of discretion. Roth, supra, 95 N . J. at 364. Reviewing courts must affirm a sentence of the trial court unless: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors found below were not based upon competent credible evidence in the record, or (3) "the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience." Id . at 364-65.

The key distinction between the co-defendants in Roach and the matter at hand is that in Roach, none of the co-defendants entered a guilty plea, whereas Bagwell pled guilty. Bagwell opted to plead guilty and was sentenced to three years of probation and 364 days of reporting in the Atlantic County Jail. He also agreed to give testimony at any subsequent trial arising from the drug sale.

By contrast, defendant did not plead guilty, but rather was found so after a trial, and was sentenced to an extended-term sentence of seven-years, with a mandatory three and one-half year term of parole ineligibility. While we are not privy to the factors that were considered in arriving at Bagwell's plea agreement, even defendant concedes, "a State may encourage a guilty plea by offering substantial benefits in return for the plea" which could include "a lesser penalty than that required to be imposed after a guilty verdict by a jury." See Corbitt v. New Jersey, 439 U.S. 212, 219-220, 99 S.Ct. 492, 492-98, 58 L.Ed. 2d 466 (1978).

The sentencing judge considered all of the necessary relevant factors in sentencing defendant. The sentencing guidelines were followed in accordance with the law, and the appropriate aggravating and mitigating factors were considered.

In that regard, we first note that defendant had twenty-four prior arrests/complaints, and ten prior indictable convictions. With respect to defendant's argument that the judge failed to weigh mitigating factor eleven, specifically that his young child would suffer as a result of his imprisonment, we find his contention without merit. On his presentence report, it clearly shows that he was not the primary caretaker for any children. The report indicated that one of defendant's two daughters, who was age seven, is in the custody of the Division of Child Protection and Permanency, and has been since she was one-month-old. As for his other daughter, age eleven, his child support arrears were $11,995.

There is nothing in the record to suggest any abuse of discretion made by the trial court judge in sentencing defendant. Given the distinguishability of State v . Roach from the matter at hand, and the absence of any sort of abuse of discretion, we refuse to disturb the sentence imposed upon defendant by the trial court.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Crouch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Apr 29, 2015
DOCKET NO. A-2008-12T3 (App. Div. Apr. 29, 2015)
Case details for

State v. Crouch

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHANE CROUCH, a/k/a SHANE…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Apr 29, 2015

Citations

DOCKET NO. A-2008-12T3 (App. Div. Apr. 29, 2015)