Opinion
DOCKET NO. A-0292-14T4
06-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY KING, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Garima Joshi, Special Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-06-1285. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Garima Joshi, Special Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Anthony King appeals his May 7, 2014 judgment of conviction for drug offenses. We affirm.
I.
The evidence at defendant's jury trial included the following. On February 27, 2013, at approximately 6:22 p.m., Jersey City police officer Dwayne Dowell was conducting plainclothes surveillance. Dowell testified he observed the following. Rachel Golden walked along the street. She removed a cigarette from its pack, but did not light it. Based on his testimony and experience, Dowell suspected Golden was signaling that she wanted to have her cigarettes dipped in phencyclidine (PCP). Defendant approached Golden, and engaged in a conversation. Golden then gave defendant the cigarette along with cash. Then, defendant reached into his pocket, and pulled out what appeared to Dowell to be a small bottle. Defendant then handed Golden back the cigarettes.
Dowell alerted the perimeter units that he had just observed a narcotics sale, and provided the suspects' descriptions. Defendant got past the perimeter units, but Officer Ishmael Cortez and Detective Paul Klemazewski soon found Golden smoking a cigarette. The officers detected a "strong odor of PCP emanating from" Golden. As the officers stopped Golden, she dropped the cigarette. Klemazewski picked it up and determined it had been dipped in PCP because it was still "wet from being dipped in a liquid." The officers then arrested Golden, and recovered from her purse another cigarette dipped in PCP.
Cortez testified that PCP has a very distinctive odor, similar to nail polish remover.
Golden admitted she had bought PCP from defendant in the past. Golden also identified a photo of defendant as the individual that sold her the PCP-dipped cigarettes on the two occasions. The photo Golden used to identify defendant was lost by the police; however, Golden was sure that defendant was the individual that sold her the PCP-dipped cigarettes. Subsequently, defendant was arrested.
After a two-day trial, the jury convicted defendant of second-degree distribution of phencyclidine, N.J.S.A. 2C:35-5(a)(1) (count one); and third-degree distribution of PCP within a school zone, N.J.S.A. 2C:35-7 (count two). At sentencing, the trial court merged count two with count one and sentenced defendant to twenty years' incarceration with ten years' parole ineligibility.
Defendant now appeals, arguing:
POINT I - IN SUMMATION, THE ASSISTANT PROSECUTOR IMPROPERLY CRITICIZED DEFENSE COUNSEL A NUMBER OF TIMES FOR "IMPUGN[ING]" THE STATE AND ITS EVIDENCE, AND THEN, DESPITE DEFENSE COUNSEL'S OBJECTIONS, THE JUDGE DID NOTHING OTHER THAN TO "NOTE" ONE OF THE TWO OBJECTIONS THAT WERE MADE, IGNORING THE OTHER ONE; REVERSAL IS REQUIRED
WHEN THE MISCONDUCT SO CLEARLY WAS INTENDED TO INFLUENCE THE JURY'S CREDIBILITY DETERMINATION.
POINT II - THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
II.
Defendant first challenges statements made by the prosecutor during his closing argument. "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. Patterson, 435 N.J. Super. 498, 508 (App. Div. 2014) (quoting State v. R.B., 183 N.J. 308, 332 (2005)). "[T]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,'" and "'so egregious as to deprive defendant of a fair trial.'" Ibid. (quoting State v. Wakefield, 190 N.J. 397, 438 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). We must hew to this standard of review.
On direct, Officer Dowell testified that when he made his observation of defendant, he was "probably about thirty feet" away, it was clear, and "it was light outside." On cross-examination, defense counsel repeatedly questioned Dowell's ability to remember whether it was still light at that time of day, including asking if it was "bright and sunny," with Dowell responding that "it wasn't pitch black." Defense counsel also repeatedly questioned Dowell's ability to remember his distance from defendant, getting Dowell to admit he was approximately two hundred feet away. Defense counsel brought out that Dowell could not remember the description of defendant he had radioed to the perimeter teams, and then repeatedly elicited from Dowell and other witnesses that Dowell radioed a description of a man approximately five-foot, eleven-inches tall, and that about eight days later Dowell saw another man selling PCP who also matched that description.
In closing argument, defense counsel argued that defendant was not five-eleven, and that the other male was five-eleven. Defense counsel contended that Dowell "didn't even know if it was day or night," and did not "even remember that it was dark [or the] distance." Defense counsel argued that Dowell made a "questionable identification," and that if "Dowell was secure in what he saw at the distance of two hundred feet, they don't go through the whole charade" of having Golden identify defendant, an identification defense counsel said was "offensive" and "clearly intended to get [Golden] to commit to making that identification so she could go home." Finally, defense counsel stated "[i]t's clear that the police don't like [defendant]."
During the State's summation, the prosecutor responded, in pertinent part:
Let me just highlight a few things. When you all got in that jury box, there's that little step. I think on the upper row there might be two steps, I know the lower row there's one. Did you step with your right foot on that step or the left foot? Could you swear absolutely, oh it was definitely my right foot. Oh it was definitely my left foot. Does it matter? Are you sitting where you're sitting now? Does it matter where you stepped on?
Listening to [defense counsel], you know you have Officer Dowell saying it's pitch black or it's absolutely sunny. That's not what Officer Dowell said. You hear him say, he was clear. Use your common sense of (indiscernible) that happened when Officer Dowell testified to about his observations that day.
Again, another point [defense counsel] said, I ask you what do I weight [sic]? Four hundred, three fifty, three twenty five, two seventy five? You better be exactly right otherwise defense counsel will impugn you and say you can't be telling the truth, you didn't get his weight exactly right.
How tall am I? Six four, six five, six one? Five twelve — well five twelve, six, sorry. You know what I mean. Five eleven? Again, better be exactly right because God forbid you say approximately because then defense counsel is going to impugn you and be like you've got to be lying, how dare you. You didn't get — get out there with a measurement and —
[DEFENSE COUNSEL]: Judge, I just want an objection on the record.
THE COURT: Noted. Continue.
[PROSECUTOR:] - with a measuring stick because God forbid we use approximately.
Later, the prosecutor addressed a photograph of the PCP-dipped cigarette which Golden had partially smoked:
As you could see, it's — I'm not going to dare say a percentage because God forbid I'm a little bit wrong, whether it's a half, three quarters or such smoked.Defense counsel objected again, with no comment by the court.
At the conclusion of summations, defense counsel moved for a mistrial and argued that the prosecutor "improperly vouch[ed] for the evidence and not only that, he did misstate it." In the alternative, defense counsel requested a limiting instruction. The trial court responded that she was going to give "the standard instruction as to the recollection of the evidence that controls, not yours nor the prosecutor's. That should satisfy that issue." After summations, the trial court instructed the jury:
In my preliminary instruction to you when we started the case, I explained to you you are the judges of the facts. . . . You and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness.
Regardless of what counsel said or even I may have said, recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts. Arguments, statements, remarks, the openings and summations of both lawyers are not evidence and must not be treated as evidence.
Here, defendant argues the prosecutor improperly impugned defense counsel. It is well-settled that prosecutors "cannot cast unjustified aspersions on defense counsel or the defense." State v. Lazo, 209 N.J. 9, 29 (2012) (citing State v. Frost, 158 N.J. 76, 86 (1999)). In such instances, "the issue for resolution is two-fold: whether the prosecutor committed misconduct, and, if so, 'whether the prosecutor's conduct constitutes grounds for a new trial.'" Wakefield, supra, 190 N.J. at 446 (citation omitted). "[I]n order to meet the second part of that test, 'the misconduct must have been "so egregious that it deprived defendant of a fair trial."'" Ibid. (citations omitted). "'[T]o warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Ibid. (citation omitted).
Here, the quoted comments by the prosecutor in closing began with permissible arguments about the difficulty of remembering details, the exchange between defense counsel and Officer Dowell about how light it was, and the challenge of estimating height. However, the prosecutor also argued that "[y]ou better be exactly right otherwise defense counsel will impugn you and say you can't be telling the truth," and "God forbid you say approximately because then defense counsel is going to impugn you and [say] you've got to be lying." Those comments cast a mild aspersion that defense counsel was overly critical of Dowell. That aspersion was unjustified, as defense counsel's questioning of Dowell's recollection was permissible and to some extent successful. "Defense counsel should not be subjected to disparaging remarks for simply doing his or her job." Frost, supra, 158 N.J. at 86. Thus, these two comments were improper. Further, defense counsel objected, and the comment was not stricken or withdrawn. See id. at 83.
It is unclear what if any discussion about weight the prosecutor was referencing.
We note that initially defendant merely noted an objection for the record, and never voiced to the trial court the claim of unjustified aspersion he now raises on appeal.
Nonetheless, no prior precedent showed that such comments were clearly and unmistakably improper. Moreover, the comments were not so egregious as to deny defendant a fair trial.
This case is distinguishable from the cases cited by defendant. In State v. Sherman, 230 N.J. Super. 10 (App. Div. 1988), a prosecutor repeatedly argued that defense counsel knew their clients were guilty, "dragged out" the trial, "tortured" the victim, engineered evidence, threw "stumbling blocks in front of you good ladies and gentlemen when you're trying to find out what the truth is," and were "not going to tell you what happened on that night, because, if they did, their clients would be convicted, so they're going to try to use certain courtroom maneuvers to work on you," namely "the defense of confusion, let's confuse the Jury." Id. at 15-18. We stressed that these comments "improperly cast[] on the defendants the burden of presenting evidence," "comment[ed] on defendant's election not to testify," and "improperly accuse[d] both defense attorneys of concealing their clients' guilt through deception," and that the prosecutor committed other misconduct. Id. at 16-18. The improper comments in Sherman were far more egregious than the prosecutor's comments here.
The comments here were also less disparaging than in State v. Pindale, 249 N.J. Super. 266 (App. Div. 1991), where a prosecutor argued that the defendant's "mommy hired him a lawyer" so he could "buy his way out of it," and that "the defense's role in this case is to try to confuse you." Id. at 286. Even so, we indicated that "the excesses of the prosecutor might be considered harmless error," but because evidence was improperly admitted, "the aggregate of those errors clearly warrant reversal." Id. at 286-87.
The comments here were also less disparaging than in State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991), where a prosecutor argued that
the best defense counsel, when the evidence is so overwhelming that it really makes your gut wrench, what do you do, you don't say look at the evidence, you say look over in the corner of the room, by God, look at some smoke in the corner of the room. . . . I don't want you to look at the defendant's conduct, I don't want you to look at the circumstances of the case, I don't want you to look at the facts because, if you look at the facts, I'm crushed. My defendant is guilty.Even so, we reversed only because of "[t]he accumulation of error[s]," including the improper admission of inflammatory photographs of the victim's body, improper questions on cross-examination of defendant, and other improper comments in summation. Id. at 431-36.
Finally, in Frost, a prosecutor argued "that defense counsel's closing arguments were 'lawyer talk,' and that defense counsel hoped that one or more jurors had 'a bad taste in [their] mouth towards officers.'" Frost, supra, 158 N.J. at 86. Our Supreme Court ruled that argument was "improper," but reversed only because of "the cumulative effect of the prosecutorial improprieties in this case," primarily the prosecutor's "highly improper" misstatements of the law, his reference to police reports that were not in evidence, and his "wholly inappropriate" bolstering of the officers' credibility. Id. at 82, 84-87.
Here, defendant claims no other errors at trial. The prosecutor did not commit any of the other egregious forms of misconduct present in Frost, Lockett, or Sherman. Nor was evidence improperly admitted as in Lockett and Pindale. The prosecutor's two disparaging comments were his only references to defense counsel. We have declined to reverse in such circumstances. State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.) ("although it was improper for the prosecutor to argue that defense counsel was misdirecting the jury from the truth and trying to 'trip up' honest witnesses, the prosecutor's dereliction was isolated"), certif. denied, 130 N.J. 13 (1992); State v. Watson, 224 N.J. Super. 354, 362 (App. Div.) (finding the prosecutor's mischaracterization that defense counsel's role was to obfuscate the facts "was wholly inexcusable," but "the prosecutor's dereliction was both fleeting and isolated"), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S. Ct. 533, 102 L. Ed. 2d 566 (1988). Moreover, the improper aspersion here was less egregious than in Darrian or Watson.
Further, the trial court instructed the jury in its preliminary and final instructions to disregard the attorneys' comments on the evidence during summation if those comments conflicted with their recollection of the evidence. "[S]uch a general charge may serve to ameliorate potential prejudice caused by remarks that are only slightly improper." Frost, supra, 158 N.J. at 86-87; see, e.g., Darrian, supra, 255 N.J. Super. at 457; Watson, supra, 224 N.J. Super. at 362. "We act on the belief and expectation that jurors will follow the instructions given them by the court." State v. T.J.M., 220 N.J. 220, 237 (2015).
Defendant argues this case is like Frost, where "the prosecutor's improper remarks related to the credibility of the officers' testimony." Frost, supra, 158 N.J. at 87. However, in Frost "[t]he State's entire case rested on the testimony of the officers." Ibid. Here, by contrast, the State's case did not depend solely on the credibility of Officer Dowell's identification of defendant on the day of Golden's arrest. Defendant was also identified with certainty both before and at trial by Golden, who had purchased PCP from defendant twice. Moreover, when questioned she provided detectives with defendant's cellphone number. That was the same number that a police cooperator had dialed to set up a similar meeting with defendant the day before, which Officer Dowell had also observed.
We note that defense counsel's rhetoric was also highly charged. "This trial was hard fought on both sides. We have recognized that criminal trials provoke strong feelings and that 'rhetorical excesses . . . invariably attend litigation.' Such excesses, however, do not always justify reversing a jury's verdict." State v. Smith, 212 N.J. 365, 409 (2012) (citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Here, "while we do not condone all aspects of the prosecutor's conduct [disparaging defense counsel], we conclude that, in the context of the entire trial, the conduct did not cause defendant to be denied a fair trial." State v. Moore, 273 N.J. Super. 118, 129 (App. Div.), certif. denied, 137 N.J. 311 (1994).
III.
Defendant next argues that his sentence is excessive. "Appellate courts review sentencing determinations in accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence must be affirmed unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant was concededly eligible for a mandatory extended term of up to twenty years on his conviction for second-degree distribution of PCP under N.J.S.A. 2C:35-5(a)(1), pursuant to N.J.S.A. 2C:43-6(f). That section provides:
A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S. 2C:35-5, . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7 . . . .The trial court found that because "defendant has previously been convicted of possession with intent to distribute within a thousand feet of a school" in 2004, "[h]e is mandatory extended term eligible under N.J.S.A. 2C:43-6(f)."
[N.J.S.A. 2C:43-6(f); see also N.J.S.A. 2C:43-7(a)(3), (c).]
The trial court found aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), and (9). The trial court found no mitigating factors. In imposing a twenty-year sentence, the court stated: "based upon his records, it's pretty obvious what he's doing over the last ten years. He has eleven arrests. He's been to state prison two times. This is his fourth indictable conviction. He has three indictments pending. He's involved in the drug trade. It's that simple."
Defendant argues that this statement shows the trial court double-counted defendant's 2004 conviction. In considering such a claim, "the same rationale applies to an extended term sentence imposed pursuant to N.J.S.A. 2C:43-6f" that applies to "a persistent offender pursuant to N.J.S.A. 2C:44-3a." State v. Vasguez, 374 N.J. Super. 252, 267 (App. Div. 2005). Under that rationale,
[t]he defendant's prior record of conviction has been taken into account in deciding whether to impose an extended term and presumably would not have the same qualitative weight in grading the range of the extended sentence. But other aspects of the defendant's record, which are not among the minimal conditions for determining persistent offender status, such as a juvenile record, parole or probation records, and overall response to prior attempts at rehabilitation, will be relevant factors in adjusting the base extended term. Nonetheless, the primary focus will be on the conduct that occasions the sentence.
[State v. Dunbar, 108 N.J. 80, 91-92 (1987).]
In Vasquez, we found error because the sentencing court "raise[d] the presumptive extended base term on account of defendant's only prior conviction, the very conviction which both allowed and required an extended term." Vasquez, supra, 374 N.J. Super. at 267. Here, by contrast, defendant had an extensive criminal record, including indictable convictions for possession of a controlled dangerous substance, and unlawful possession of a weapon, which carried a five-year sentence, and four Municipal Court convictions. Those "other aspects of the defendant's record," Dunbar, supra, 108 N.J. at 92, his second-and third-degree offenses here, three aggravating factors, and the absence of any mitigating factors, provided sufficient bases for the imposition of the twenty-year sentence.
Defendant further argues that the trial court failed to take into account the nature and circumstance of the offense at hand. However, in sentencing defendant, the court stated, defendant "was found guilty by a jury this past March. I presided over that trial so I'm familiar with the matter." Thus, the court was aware of all the facts and circumstances surrounding the case.
Finally, defendant argues the trial court should have found as mitigating factors that "defendant's conduct neither caused nor threatened serious harm," N.J.S.A. 2C:44-1(b)(1); and "defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2). We have held that "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994). This is equally true for distribution of PCP. Moreover, the court had "reason to believe, in view of defendant's history of drug involvement, that his violations of the law would continue." Ibid.
"The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." Ibid. (citing State v. Roth, 95 N.J. 334, 364 (1984)). Under that test, the sentence passes muster.
IV.
Defendant also submitted a supplemental pro se brief. In addition to the two points raised by counsel, he argues:
POINT III - POLICE PROCEDURE IN PROCURING A SUSPECT/DEFENDANT STATEMENT AND CONDUCTING A PHOTO LINE-UP IDENTIFICATION WAS ABSOLUTELY ILLEGAL, BEING WELL BEYOND THE BOUNDS OF SUGGESTIVE AND QUESTIONABLE.
POINT IV - PROSECUTORIAL MISCONDUCT DENIED THE DEFENDANT A FAIR TRIAL.
POINT V - THE JUDGE VIOLATES THE IMPARTIALITY CLAUSE OF HIS JUDICIAL DUTIES CREATING A DEGREE OF BIAS AND PREJUDICE, WHICH DENIED THE DEFENDANT A FAIR TRIAL.
Specifically, defendant claims the prosecutor improperly argued that the evidence would show defendant distributed PCP to Golden, and that defendant "was able to get away." --------
Defendant's pro se arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION