Opinion
DOCKET NO. A-4731-12T1
12-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CALVIN ALEXANDER, a/k/a CALVIN L. ALEXANDER, CALVIN J. ALEXANDER, CALVIN WILLIAMS, KELVIN ALEXANDER, CLAVIN L. ALEXANDER, CLAVIN LAMONT ALEXANDER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Fedorczyk, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-00207. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Fedorczyk, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After a jury trial, defendant Calvin Alexander, a State inmate, was found guilty of third-degree unlawful possession of a wireless telephone (the "mobile phone") in a correctional facility, contrary to N.J.S.A. 2C:29-10(b). The mobile phone was discovered in a light fixture attached to the ceiling near defendant's bunk in Northern State Prison. The phone was associated with text messages from three phone numbers linked to defendant's inmate approved phone number list.
On this direct appeal, defendant raises the following arguments:
POINT 1
The trial court erred in permitting improper opinion testimony before the jury without qualifying the witness as an expert and without charging the jury on the limits of opinion testimony (plain error).
POINT 2
The trial court erred in permitting defendant's prior convictions to be admitted against him without appropriate sanitization. Permitting the prosecutor to highlight the crimes that defendant had committed in the past unfairly prejudiced defendant and deprived him of a fair trial on the possession of cell phone charge at issue (plain error).
POINT 3
The trial court erred in permitting the prosecutor to ask defendant to comment on the veracity of the correction officers' trial testimony (plain error).
POINT 4For the reasons that follow, we affirm.
The trial court erred in denying defendant's motion for acquittal.
POINT 5
The trial court's jury charges were improper and insufficient to ensure conviction beyond a reasonable doubt of all elements of the criminal statute in question (plain error).
POINT 6
The trial court erred in not declaring a mistrial following the jury's announcement of deadlock (plain error).
POINT 7
Defendant's right to be present for sentencing was infringed, warranting vacation of the sentence imposed and remand for resentencing (plain error).
POINT 8
Defendant's rights under at least the State Constitution's Double Jeopardy provision were infringed below (plain error).
POINT 9
Defendant's sentence is improper and excessive.
I.
The four correction employees who testified in the State's case-in-chief presented the following facts, some of which defendant disputed in his own trial testimony. As we will detail, the one critical fact that was uncontroverted is the discovery of a mobile phone in the light fixture near defendant's prison bunk.
From November 2003 to September 2010, defendant was a State inmate at Northern State Prison. He was subsequently transferred to East Jersey State Prison. Defendant has been, and continues to be, incarcerated because of his conviction in 1994 for murder, which resulted in the imposition of a life sentence. According to State prison rules and regulations, inmates such as defendant are prohibited from possessing electronic devices within the institution, including mobile phones. See N.J.A.C. 10A:31-1.3.
On January 26, 2009, Correction Officer Kairo Ruffin conducted a search of defendant's dormitory area at Northern State Prison. The dormitory was located within a mobile trailer, in which twelve to fourteen inmates slept on bunk beds.
While performing the dormitory search, Officer Ruffin discovered a mobile phone inside of a light fixture hanging near or over defendant's bunk. Ruffin secured the phone, noted the name of the inmate associated with the bunk immediately beneath where the phone was discovered, and continued with his search of the trailer area. Correction officers who assisted Ruffin in the search followed a systematic process, starting from the back to the front of the room, and moving on to the next area after completing one area. The officers searched the lights, bunk beds, and footlockers contained within the area.
After the search of the entire dormitory area was completed, Officer Ruffin secured the recovered mobile phone and related paperwork in the evidence locker of the prison's Special Investigations Unit ("SIU"). Once Ruffin completed that step, his involvement ended, and special investigators from the Department of Corrections ("the Department") proceeded with their own investigation.
Ruffin testified that the bunk immediately below where the mobile phone was discovered belonged to inmate Terrence Feeney. Ruffin identified Feeney by referring to the name sheet that corresponded to the bunk bed. Defendant's bunk was next to Feeney's.
The Department arranged for the mobile phone to be examined by Senior Investigator Jeffrey Poling. Poling works in the computer forensics unit of the SIU. Poling conducted a physical investigation of the phone to ascertain its make, model, and carrier. He focused upon various identifiers on the back of the mobile phone. Among other things, Poling noted the phone's "IMEI" number, which is the International Mobile Electronic Identification number unique to each mobile phone. In addition, Poling examined the device's "SIM" card, which stores contacts, call records, and text messages, as well as "embedded information" regarding related phone numbers. Poling also took note of "other network identifiers" that are used for a carrier's billing purposes.
Poling testified that his examination revealed the phone number associated with the SIM card by reference to the "MSISDN" (Mobile Subscriber Integrated Services Digital Network Number). The MSISDN is a phone number that is assigned to a particular SIM card. Poling's examination further showed that there was no contact information contained in the phone's internal phonebook.
Investigator Poling located a series of sixteen text messages associated with the retrieved phone. These sixteen text messages were admitted into evidence at trial, after certain redactions were made in response to defense counsel's objection. Reading aloud to the jury from his report, Investigator Poling related the contents of the sixteen text messages. The texts provided several relevant items of information, such as the incoming phone number, the date and time received, whether the text message had been read or not, and the contents of the text itself.
The earliest text message on the recovered SIM card was dated January 16, 2009, and the latest text message was dated January 25, 2009. The contents of the text messages appeared to be mostly personal in nature, with the exception of a marketing message from a phone company confirming that a payment had been made to the recipient's account.
The State's theory of defendant's guilt rested on the link between (1) the phone numbers associated with some of the incoming text messages and (2) defendant's approved prison phone number list. The prosecution's case did not hinge upon the specific contents of the text messages themselves.
According to Poling, there would have been "no way" that a third party could have accessed remotely the text messages that were associated with the mobile phone. Instead, a person would have had to be in possession of the phone, powered it on, "go[ne] through the menu of the phone to accept the text messages," and then "look[ed] at the screen to read [them]."
Poling further indicated that it was not possible for him to tell whether the person who had opened a text message on the recovered phone had responded, either via text message or via a phone call, to the party who had sent each text message. Such information could not be accessed by Poling in the investigation because the mobile phone had a lock code preventing access to the phone itself. Because the lock code could not be defeated, Poling explained that he was limited to conducting an examination of only the phone's SIM card to retrieve the text messages. By examining the phone's SIM card, Poling was able to read the contents of the sixteen incoming texts.
In conducting his examination of the phone, Poling used a tool that he described as a "Universal Forensic Extraction Device," or "UFED," which is a hardware box that contains a slot for a SIM card. Once the SIM card is placed into the UFED's slot, Poling would "go through a series of programming menus" to direct the program to examine the SIM card. That program automatically generates its results. A separate software program compiles the data into a report format for the end user.
On cross-examination, Poling clarified that the information contained on a mobile phone's SIM card is encrypted and thus cannot be altered. Consequently, a person cannot manipulate the SIM card to reflect a different phone number on the mobile phone. Poling also acknowledged that text messages could also be stored in a mobile phone's internal memory. However, in this case, Poling was unable to access the mobile phone's internal memory because the phone's lock code could not be defeated.
The State also presented testimony from Jose Raboy, another member of the computer forensics unit within the SIU. Raboy ran several of the phone numbers found in the text messages on the recovered phone through what is known as the Inmate Telephone System ("ITS"). Raboy described the ITS as a computer terminal in the field unit office. The ITS is used to record inmates' telephone calls. It provides prison authorities with access to the inmates' personal lists of approved telephone numbers.
Raboy discovered that three of the incoming phone numbers stored on the confiscated phone were linked to defendant's personal approved phone list. One of those three phone numbers was also an approved number for another inmate, Daniel Gatson.
Omar Howard, a third investigator with the SIU, also testified for the State. Howard has responsibility for investigating violations of the Department's rules and regulations. Howard also investigates criminal offenses involving correction officers and inmates, including contraband within the prison. Howard was the lead investigator assigned to investigate the circumstances surrounding the discovery of the phone that was confiscated in this case by Officer Ruffin. According to Howard, in his experience, contraband — such as drugs, mobile phones, and weapons — could be smuggled into the prison facility by correction officers, civilian employees, and visitors.
After the mobile phone was discovered over his bunk bed on January 26, 2009, Feeney was initially charged with possession of that phone. Howard interviewed Feeney, but he was unable to elicit any information from him.
Investigator Poling subsequently conducted his analysis of the mobile phone, and retrieved information from the mobile phone. Poling provided a report to Investigator Raboy, who, in turn, provided Poling's report to Investigator Howard. Howard testified that he then instructed Raboy to input the phone numbers, which were retrieved from the recovered mobile phone, into the ITS.
Howard explained in his testimony why one of the stored phone numbers could be associated with another prison inmate, Gatson, in addition to defendant. According to Howard, such a scenario was "common because sometimes inmates know the same . . . individuals on the street." Howard also explained that the approved phone numbers for specific inmates were updated regularly, such as when an inmate was moved from one part of the facility to another. Consequently, an inmate in such situations might be resubmitting phone numbers for approval that he had already submitted previously.
According to Howard, there was no practice or process in place for the prison to verify the identity of persons whose phone numbers were submitted by an inmate for approval. Hence, even if an inmate claimed that a certain phone number was that of a relative, the prison did not conduct any follow-up to verify that the person associated with that phone number actually was the inmate's relative as claimed.
As a result of the investigation linking three of the numbers retrieved from the mobile phone with defendant's personal list of approved phone numbers and finding no such link to Feeney, Feeney was ruled out as a potential offender. In addition, Gatson, the inmate with whom defendant had one phone number in common, was ruled out because Gatson was located on the south compound of the prison. Gatson did not have access to the area of the west compound in which the mobile phone was discovered.
Defendant testified in his own behalf as the sole defense witness. He noted that he had been housed on the date in question in the "I" trailer in the Northern State Prison. He was assigned to bed number five, which was a top bunk in the E-1 dormitory there. Bed number three, which was also a top bunk located immediately beside defendant's bed, was assigned to Feeney.
When presented with a photograph of the confiscated phone at trial, defendant testified that he had never seen or used it before. Defendant claimed that, at the time the phone was recovered, which was approximately 2:00 p.m. on January 26, 2009, he was sleeping in his bed. He testified that this was his common practice to be asleep at that afternoon hour because his food service shift started at 5:00 a.m. and concluded around 12:30 p.m.
Defendant described the seven land-line phones that inmates could use to make outgoing calls, by keying in a personal identification number ("PIN") that each inmate receives upon becoming a state prisoner. Defendant stated that inmates are allowed to call only those phone numbers that they have submitted to prison authorities and that have been approved by those prison authorities.
Defendant's own approved list included nine telephone numbers. He was unable to provide any explanation of why three of those numbers had appeared on the mobile phone recovered by Officer Ruffin. Defendant also claimed that he did not know how to use a mobile phone because he had been incarcerated for so long.
According to defendant, inmates would have to pass the lower-numbered beds, such as beds numbered one and two, along a central walkway located in the middle of the dormitory room, in order to reach the higher-numbered beds, such as beds numbered seven and eight. However, the light fixtures were located directly above the bunk beds, such that they allegedly were not accessible from the central walkway that separated the bunks.
In her closing argument to the jury, the prosecutor emphasized the significance of the link between the mobile phone and the three phone numbers that also were on defendant's approved phone list. Defense counsel argued that the alleged link did not establish that defendant ever possessed the mobile phone that was confiscated. She asserted that the area in which the mobile phone was discovered was accessible to any of the other resident inmates.
On the second day of deliberations, the jury found defendant guilty of violating N.J.S.A. 2C:29-10(b), as charged in the indictment. As we noted, supra, the trial court imposed a four-year custodial sentence, consecutive to the life sentence defendant has already been serving for murder.
II.
Defendant presents six arguments, mainly evidentiary in nature, in attempting to set aside his conviction. None of these arguments have merit. We address them in turn.
A.
As his first contention, defendant argues that the trial court erred in allowing Investigator Poling to present what amounted to expert opinion testimony, without qualifying Poling as an expert and without providing the jury with the customary expert witness instructions. This issue developed in the following manner.
Before the start of trial, and again on direct examination before Poling presented the substance of his testimony, the prosecutor indicated on the record that the State sought to qualify him as a "computer and cell phone expert." In support of that proffer, of Poling's expertise, the prosecutor elicited foundational testimony from Poling detailing his background and training in the forensic analysis of "data contained in computers and cell phones."
In response to our inquiry, counsel have advised us in correspondence that there is no indication that the State provided a written notice prior to trial formally designating Poling as an expected expert in its case, in accordance with Rule 3:13-3(b)(1)(I). However, Poling's written report, detailing the text messages that Poling had retrieved from the mobile phone, was furnished to defense counsel prior to trial.
Specifically, Poling recounted the extensive training he had received in the field from the National White Collar Crime Center, the Union County Prosecutor's Office, courses at Fairleigh Dickinson University, and other places. Poling indicated that he is a certified instructor of computer and mobile phone forensics with the State's Police Training Commission. He holds a certification as an "access data certified examiner." As of the time of trial, Poling had conducted over 1,000 mobile phone examinations and 190 computer examinations for the State Police and numerous local police departments. On voir dire by defense counsel, Poling acknowledged that he had not yet been qualified as an expert witness on these subjects in a previous case.
At this point, the trial judge called both counsel to sidebar to explore further the issues raised by the expert proffer. Defense counsel asserted that Poling would be testifying only as a "fact witness" because he essentially would be relating facts generated as a result of his first-hand examination of the recovered phone. On the other hand, the prosecutor maintained that Poling's testimony was expert in nature, because Poling would be drawing upon his special expertise, such as in knowing that the incoming text messages on the phone could not be accessed by a person who did not possess the phone.
The trial court recognized that Poling's anticipated testimony was somewhat "hybrid," because it involved, at least in part, certain "scientific" aspects. Given the circumstances, the court ruled that Poling would testify solely as a fact witness because, in essence, his testimony would largely derive from his personal examination of the phone.
Guided by the court's ruling, the prosecutor then elicited from Poling the substance of his testimony concerning the phone. That testimony specifically included Poling's opinion that the text messages on the phone could only be accessed by someone in possession of it. The testimony also included his determination that the phone's text messages could not be retrieved remotely. Defense counsel did not object to these opinions when they were presented.
At the conclusion of Poling's testimony, the prosecutor renewed her request that the court qualify him as an expert under N.J.R.E. 702. Defense counsel objected, continuing to maintain that Poling was a mere fact witness. The court declined to reconsider its previous ruling. The court again recognized the "hybrid" aspects of Poling's testimony, characterizing his testimony as being "smack in the middle" between lay and expert proof.
Applying the well-settled three-part test for the admissibility of expert testimony under State v. Kelly, 97 N.J. 178 (1984), the court first agreed with the State that Poling, by virtue of his background, had "sufficient expertise" to qualify as an expert. Kelly, supra, 97 N.J. at 208. Second, the court found that the subject matter of Poling's testimony was at a state of the art to be considered "sufficiently reliable" to support expert opinion. Ibid.
However, the court ruled that Poling's testimony did not satisfy the third prong of the Kelly test, because his assertions concerning the mobile phone were not a subject matter "beyond the ken of the average juror." Ibid. In this regard, the court noted that many laypersons commonly have familiarity with the operation of a mobile phone and with accessing text messages from such phones. In light of that common experience, the court found that it is not "beyond the scope of the average person to understand that someone went into the [recovered phone's] SIM card and retrieved it and put it in the computer."
As a result of the court's classification of Poling as a non-expert witness, the court did not issue the customary instructions that are provided for guiding jurors on the proper use of expert testimony, either at the time of Poling's testimony or in the final jury charge. See Criminal Model Jury Charge, Expert Testimony (rev. Nov. 10, 2013). Indeed, defense counsel requested no such instruction. In closing argument, defense counsel did not challenge the strength of Poling's findings, including his opinions concerning the non-accessibility of text messages from someone who does not possess the phone.
On appeal, defendant now contends that the trial court committed plain error in allowing Poling to provide opinion testimony without qualifying him as an expert and without charging the jury about the proper limits of such opinion testimony. In support of that argument, defendant relies mainly upon the Supreme Court's opinion in State v. McLean, 205 N.J. 438 (2011). The Court in McLean overturned a conviction, after a trial in which a police officer who had been presented as a lay witness improperly provided his opinions about perceived narcotics activity. The Court found that the officer's opinions, to the extent that they were based upon his training, education and experience, "in actuality" comprised expert testimony that the officer had not been proffered to supply. Id. at 463. Moreover, the Court found that the officer's testimony on the subject could not be admitted through the guise of the lay opinion rule, N.J.R.E. 701, because, as such, it "invaded the fact-finding province of the jury." Id. at 443.
We reject defendant's claim here that he is entitled to a new trial based on the trial court's treatment of Poling as a lay witness rather than as an expert. First and foremost, defendant's current position on appeal as to the nature of Poling's opinions is diametrically opposed to the position that his trial counsel repeatedly advocated to the trial court, i.e., that Poling was only a "fact" witness. The trial judge relied on and agreed with defendant's position, at least twice rejecting the State's requests to have Poling declared to be an expert witness.
We suspect that defendant's trial counsel may have tactically calculated that defendant was better off having Poling treated as a lay witness, like the other witnesses at trial, rather than being potentially elevated in the jurors' minds as an expert who had been deemed "qualified" by the judge. Apparently, that strategy was unsuccessful. Now defendant urges that this court adopt on appeal the very position that the State had urged and the defense had opposed at trial. The defense cannot have it both ways.
Of course, that possible perception by the jurors would be ameliorated by a limiting instruction explaining to the jurors that they are to assess the credibility of experts just as they assess the credibility of all other witnesses.
Any error in the trial court's classification of Poling's testimony was surely invited by defendant's trial counsel, and warrants no relief on appeal. Under the doctrine of invited error, a disappointed litigant may not argue "on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010); see also State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (likewise applying the invited error doctrine where a defendant convinced the trial court "to take a course of action" that ultimately proved erroneous).
Even if we were to overlook defendant's change of position and consider the merits of this issue, the court's evidentiary ruling as to Investigator Poling's testimony should not be disturbed. The alleged error is not constitutional in dimension. Because it was not raised below, the plain error standard of review applies. See R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). In general, we grant substantial deference to trial courts in our review of their evidentiary rulings. State v. Nelson, 173 N.J. 417, 470 (2002); State v. Jenewicz, 193 N.J. 440, 456 (2008), certif. denied, 217 N.J. 304 (2014). The trial judge did not abuse her discretion on this issue, nor did she clearly misapply the precepts of N.J.R.E. 701, N.J.R.E. 702, and McLean.
As the judge reasonably determined, Poling's testimony had "hybrid" qualities. Some of it was expert in nature. Other aspects of it were lay observations within the common experience of modern-day mobile phone users. Poling's testimony straddled the line between lay and expert proof. To the extent that portions of his testimony were more expert in tenor, it is clear, as the judge found, that Poling possesses the credentials to qualify as an expert on the subject, and that his opinions were reasonably shown to have sufficient reliability. See Kelly, supra, 97 N.J. at 208.
Unlike in McLean, this is not a situation in which the State improperly attempted to present expert testimony in the guise of lay opinion. To the contrary, the State repeatedly but unsuccessfully requested the court to have Poling classified as an expert. There is no indication that the State would have opposed the customary expert witness charge, had the defense requested it or had the court issued that charge sua sponte. In sum, we find no plain error occurred here on this issue.
That said, it would have been better practice for the State to have formally designated Poling as an expert in advance of trial in compliance with Rule 3:13-3(b)(1)(I), although we discern no prejudice to defendant, flowing from that oversight here. Defendant is not arguing that he or his counsel was surprised about the State's attempt at trial to qualify Poling as an expert, or that it was deprived of a fair opportunity to retain a competing expert.
B.
Defendant next argues that allowing the State to highlight his prior convictions, without sanitizing such information, was unfairly prejudicial and precluded him from receiving a fair trial. Because this issue likewise was not raised below, we are again guided by a plain error standard of review. R. 2:10-2; Macon, supra, 57 N.J. at 336. We detect no error, let alone plain error, in the trial court's handling of this issue.
Defendant has three prior adult convictions: (1) an April 1989 conviction for first-degree robbery and possession of a weapon for an unlawful purpose; (2) an April 1989 conviction for third-degree possession of a controlled dangerous substance ("CDS"); and (3) the aforesaid February 1994 conviction of first-degree murder. The robbery conviction resulted in a ten-year custodial sentence with a three-and-one-third parole disqualifier. The CDS conviction resulted in a concurrent four-year sentence. Most significantly, the murder conviction, as we previously noted, resulted in a life sentence with a parole ineligibility period of thirty years. The life sentence for murder was responsible for defendant being housed at Northern State Prison on the day the mobile phone was confiscated.
Former N.J.R.E. 609 stated, in pertinent part, at the time of this 2010 trial that a witness's prior conviction "shall" be admitted, for the purpose of impeaching a witness, "unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence." N.J.R.E. 609. These standards are germane here because defendant elected to testify in his own behalf.
N.J.R.E. 609 was modified, adding language with a more stringent test of admissibility for convictions more than a decade old, effective July 1, 2014. See N.J.R.E. 609(b). We apply the prior version of N.J.R.E. 609, which was in effect at the time of trial in this case, as none of the parties contends that the newer version of N.J.R.E. 609 enacted in 2014 applies retroactively to the present trial.
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Defendant argues that his prior convictions, from 1989 and 1994, were too remote to be used to impeach his trial testimony in 2010. He invokes considerations for remoteness that were articulated by the Supreme Court in State v. Sands, 76 N.J. 127 (1978), that the admission of a defendant's prior convictions falls within the discretion of the trial judge, with "remoteness" as the "key to exclusion." Id. at 144. Explicitly stating that "[r]emoteness cannot ordinarily be determined by the passage of time alone," the Court in Sands outlined several considerations for trial judges to consider in determining the remoteness of a conviction, such as the nature of the conviction and whether the conviction was related to a crime of dishonesty. Ibid. Furthermore, the "trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45.
In State v. Brunson, 132 N.J. 377 (1993), the Supreme Court expressly overruled the standard set forth in Sands, and it announced further limitations upon what prior convictions the State can introduce to impeach a testifying defendant's credibility. The Court held in Brunson that "only the number, degree, and date of the defendant's prior similar convictions" may be introduced by the State for impeachment purposes. Id. at 394. Prior dissimilar convictions may be introduced "without limitation." Ibid.
The Court in Brunson also explained when the details of a prior conviction used for this impeaching purpose must be sanitized. The Court held that the State may introduce evidence of the prior conviction, "limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which [the] defendant was convicted." Id. at 391. This process of "sanitization" curtails the scope of the State's cross-examination of a testifying defendant, although the defendant may waive the protection afforded by sanitization. Id. at 392.
Here, although defendant was entitled to sanitization under Brunson, his trial counsel took no steps to limit revealing his prior convictions, and, in fact, referred to them explicitly on multiple occasions throughout the trial, including on defendant's direct examination. In addition, defense counsel did not raise any objection to the prosecutor's own references to defendant's prior convictions.
Furthermore, on the record at the trial on December 16, 2010, defense counsel explicitly withdrew her previously advanced application to the court for sanitization.
The trial judge provided clear instructions in the final charge to the jury that it was to use evidence of defendant's prior convictions solely for the purpose of determining credibility. The judge appropriately explained that the jury was to consider evidence of defendant's prior convictions in the context of all factors, and that such evidence should not obligate any juror to change his opinion of defendant's credibility. This charge appropriately tracked the text of the model instruction. See Criminal Model Charges, Credibility-Prior Conviction of a Defendant (rev. Feb. 24, 2003).
The special context of this case involving the illegal possession of a mobile phone in a prison requires a practical recognition that the jurors would obviously be aware that defendant had been convicted of a prior offense, one that was serious enough to result in his incarceration in State prison. Given that context, there would have been little utility in attempting to shield the jurors from learning about defendant's status as a convicted felon. They surely knew that.
Even if defense counsel had objected under Rule 609 to the disclosures, and had not withdrawn her request for sanitization, it is doubtful that the additional details of the prior convictions made known to the jurors during defendant's direct examination would have made a material difference to their assessment of his credibility. As a reasonable tactical measure, defense counsel chose to bring out the prior convictions on direct examination rather than have them revealed, perhaps more pointedly or dramatically, on the prosecutor's cross-examination. The judge took pains to issue the appropriate jury instructions so that the convictions were not misused. The law presumes the jurors abided by those instructions. State v. Ross, 218 N.J. 130, 152 (2014); see also State v. Manley, 54 N.J. 259, 271 (1969).
C.
Defendant further argues for the first time on appeal that the prosecutor engaged in prejudicial misconduct by asking defendant, on cross-examination, whether the corrections officer who testified at trial, Officer Ruffin, "must be wrong." Defendant characterizes that question as improperly "buttress[ing] the State's position by personally opining as to the credibility of the witnesses." We reject this claim.
We again apply a plain error standard of review on this issue because of the absence of an objection by defendant's trial counsel to the prosecutor's question. Indeed, the failure to object to the query at the time it was made signals that trial counsel did not consider the prosecutor's words to be inappropriate. See State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993) (applying this concept analogously to improper comments made by a prosecutor during summations).
Although case law discourages prosecutors from insinuating on the cross-examination of a testifying defendant that the State's witnesses had committed perjury, the mere fact that a prosecutor makes such an improper query does not automatically signify that a defendant was unduly prejudiced and deprived of a fair trial. In several instances, such improper comments or queries have been deemed harmless error. See, e.g., State v. Dellisanti, 203 N.J. 444, 461-63 (2010) (finding harmless error in the prosecutor's suggestion to defendant that he was claiming the State's witness fabricated his testimony to "get back at" him); State v. Bunch, 180 N.J. 534, 549 (2004) (finding that the defendant was not deprived of a fair trial just because the prosecutor had asked him on cross-examination if he wanted the jurors "to believe that everything that the [police] officers came in here and testified to is untrue?"). The decisions which conclude that a new trial was required because of such prosecutorial queries or remarks typically involve more flagrant and inflammatory attacks. See, e.g., State v. Frost, 158 N.J. 76, 86 (1999) (ordering reversal because of the cumulative prejudice caused by multiple improper comments, including a suggestion that at least one juror had "a bad taste in [his or her] mouth towards [police officers]"); State v. Staples, 263 N.J. Super. 602, 604-05 (App. Div. 1993) (finding a prosecutor's reference in summation to a testifying police officer's vested pension as a reason why the officer was truthful was sufficiently prejudicial to warrant reversal).
Here, the prosecutor's questioning of defendant about the veracity of Officer Ruffin's competing narrative was designed to clarify and punctuate defendant's direct testimony that the phone confiscated by his bunk was not his own. The question — which was not objected to — was fleeting and did not rise to the level of prosecutorial misconduct. Moreover, as we note in Part II(D), infra, the evidence presented at trial was abundantly sufficient to maintain a conviction. The question did not have a clear capacity to produce an unjust result. R. 2:10-2.
D.
We reject as without merit defendant's remaining non-sentencing arguments asserting that (1) the verdict was against the weight of the evidence and thus he was entitled to a judgment of acquittal; (2) the judge erred in defining a mobile phone as an "electronic communication device" covered by N.J.S.A. 2C:29-10(b), and (3) the judge should have declared a mistrial after the jury announced it was deadlocked. These claims require no extensive discussion. R. 2:11-3(e)(2).
The verdict was rationally supported by the State's proofs, particularly the linkage between the telephone numbers on the confiscated phone and defendant's own personal approved call list. R. 3:18-1; State v. Mayberry, 52 N.J. 413, 436-37 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).
The definitional guidance the judge provided to the jurors concerning the nature of an "electronic communication device" was benign and accurate. That is especially so, given that defense counsel conceded on the record the recovered device was "obviously a cell phone" and that a cell phone is a "commonly understood term" for the "electronic communication device" referenced in the indictment. See, e.g., State v. Borjas, 436 N.J. Super. 375, 401-05 (App. Div. 2014) (similarly approving of a court's instruction to assist the jury in understanding the meaning of an undefined term in a statute).
Lastly, the court had no obligation to declare a mistrial where, as here, the deliberating jury had not signaled an "intractable divide." State v. Ross, supra, 218 N.J. at 145.
III.
Defendant's remaining three arguments concerning his sentencing and punishment are equally unavailing.
First, we reject defendant's claim that he was deprived of his right under the constitution and the Rules of Court to be present at sentencing. The record shows that defendant duly executed a written waiver to be absent at sentencing, as shown in the State's appendix on appeal. See R. 3:21-4(b) (prescribing the use of such a written waiver form).
Second, we find no violation of defendant's double jeopardy rights occasioned by the concurrent imposition of his criminal sentence for illegal possession of the mobile phone in violation of N.J.S.A. 2C:29-10(b), and the civil disciplinary sanctions that were separately imposed upon him by the Department of Corrections. Defendant's citation to Russo v. N.J. Department of Corrections, 324 N.J. Super. 576 (App. Div. 1999), is not on point because this case, unlike Russo, does not involve successive prison disciplinary proceedings.
Finally, we reject as utterly lacking in merit defendant's claim that his four-year consecutive sentence for this offense was excessive. The consecutive sentence was warranted to avoid defendant being allowed to commit a "free crime" in prison while serving a life sentence. Moreover, there is no plausible indication that the trial judge misapplied her discretion in weighing the aggravating and mitigating sentencing factors. See State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 18-22) (noting the general deference owed to trial judges in sentencing decisions); see also State v. Bieniek, 200 N.J. 601, 612 (2010).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION