Opinion
DOCKET NO. A-5700-14T3
04-13-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SADDIQUE WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Assistant Prosecutor, of counsel; Stephen E. Parrey, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fasciale and Sapp-Peterson. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-09-0941. Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Assistant Prosecutor, of counsel; Stephen E. Parrey, Assistant Prosecutor, on the brief). PER CURIAM
Following a jury trial, defendant was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) arising out of a domestic violence incident. On appeal, defendant raises one point for our consideration:
AS A CONSEQUENCE OF SUMMATION COMMENTS MADE BY THE PROSECUTOR IN VIOLATION OF STATE V. DANIELS, 182 N.J. 80 (2004) AND THE COURT'S FAILURE TO ADEQUATELY INSTRUCT THE JURY, DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I ¶¶ 1, 10. (Partially Raised Below)
The evidence presented before the jury disclosed that Trenton police were dispatched to a local motel in response to a report of a domestic violence incident. Upon arrival, they encountered the victim whose face was swollen. She was transported by an emergency medical squad to nearby Helene Fuld Medical Center for treatment. Later, the victim was interviewed at police headquarters where she reported that she and defendant were staying together in a motel. On the morning of the incident, she left the motel to drive her daughter to school. She received a call from defendant, who was upset that she had left him at the motel with her four-year old child knowing, however, that he had a court date. Upon her return to the motel, defendant continued to argue with her and when she told him that she would not help him, he removed her wallet from her purse. She attempted to retrieve the wallet from him, but defendant punched her in the right eye. He also punched her in the face, causing it to bleed. When a motel employee, from whom she had earlier requested assistance with the remote control, came to the door, she grabbed her son and took that opportunity to flee the motel room and to then call the police.
Defendant testified on his own behalf and acknowledged that he and the victim got into an argument when the victim returned to the motel. He denied punching the victim, but instead testified that the two of them were tussling over her cell phone. He explained that at one point they each had a grip on the phone, pulling in opposite directions of each other. When he released his grip on the phone, the victim struck herself in the face.
During summation, the assistant prosecutor told the jury:
And keep in mind that just as you and I have had a chance to listen to the victim's testimony and all of the witnesses that testified, so, too, did this Defendant and so, too, was he able to manipulate and craft his testimony in response.
At the conclusion of the assistant prosecutor's summation, at side bar, defense counsel posed an objection to the comment that defendant had "listened to the victim's testimony and then crafted his testimony accordingly." The trial judge overruled the objection, commenting that he "used to work that in with all of [his] summations," and ruled that the challenged statement was a "fair comment," declining to give a curative instruction. The judge proceeded to charge the jury.
Just before directing the jury to retire to commence deliberations, the assistant prosecutor alerted the trial judge that her office had done some research and, citing State v. Daniels, 182 N.J. 80 (2004) and State v. Feal, 194 N.J. 293 (2008), realized that it was improper to comment, during her summation, that defendant "sat, listened and crafted his testimony." She requested that the trial judge "[s]trike the State's comments regarding the [d]efendant listening to the testimony and crafting his testimony, and disregard that comment in its entirety." The trial judge obliged and gave the following instruction:
There was a comment made during the course of the State's summation that the Defendant had the opportunity of listening to all the evidence and the ability to craft a response to that during the course of his testimony. I am going to ask you to strike that comment by [the assistant prosecutor].
There is case law to the effect that that is an improper comment so you disregard that in its entirety. The Defendant has a right to sit in trial -- of course, it is his trial -- and to be here and that type of comment wouldn't impact on that ability, it seems to me. But whatever the rationale is, please disregard it; that comment should not be
considered by you during the course of your deliberations.Defense counsel posed no objection to the curative instruction given by the trial judge.
On appeal, for the first time, defendant contends that the trial judge, by expressing his own misgivings about the efficacy of the case law necessitating the curative instruction, undermined the effectiveness of the instruction. We disagree.
We begin by noting that while defense counsel properly objected to the comments by the assistant prosecutor, defense counsel did not object to the trial judge's comment expressing his opinion about the law during the curative instruction, although equally obliged to do so. State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). By failing to object, the presumption was created that the curative instruction given, in its entirety, was adequate. Id. at 134-35. Moreover, by failing to object, the trial judge was also deprived of "the opportunity to take curative action," with regard to his gratuitous comment. Ibid. (citations omitted). Thus, we review the claimed error under the plain error standard. R. 2:10-2.
The plain error standard requires a defendant to "show that the error was 'clearly capable of producing an unjust result.'" State v. Timmendequas, 161 N.J. 515, 576 (1999) (quoting R. 2:10-2). The error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)). We see no plain error here.
Defendant, in his testimony, admitted that he tussled with the victim; and, accepting his version of the incident, defendant testified he knew that if he let go of the phone, the victim would "like fly back." It was undisputed the x-ray images taken at Helene Fuld Medical Center identified a fracture to the maxilla at the base of the victim's nose and extensive soft-tissue swelling, indicative of an acute injury, rather than a self-inflicted injury with a cell phone. Additionally, the victim received stitches to her mouth. The physician's assistant who testified opined that the nature of the victim's injuries were such that they would impact her ability to eat "hard food."
While the trial judge expressing to the jury his personal opinion about the law was improper, the remark was fleeting in contrast to his admonition, three times, to the jury that it disregard the prosecutor's improper comment. The trial judge further explained that defendant had the right to be present at his own trial.
Measured under the plain error standard, we are satisfied the trial judge firmly and specifically addressed the impropriety of the assistant prosecutor's comment about defendant having the ability to tailor his testimony and that the fleeting comment by the court during the curative instruction, for which there was no additional objection, did not undermine the efficacy of the curative instruction.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION