Opinion
DOCKET NO. A-3366-13T1
06-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MALCOLM O. DRAYTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-02-0183. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction after a jury trial for second-degree attempted robbery in violation of N.J.S.A. 2C:15-1a(1). We affirm.
We discern the following facts from the trial record. On March 5, 2012, shortly after midnight, Mustafa Ozdemir, the owner of a restaurant in Willingboro, was closing up for the day and opened the doors for fresh air as he began cleaning up. While Ozdemir was vacuuming, defendant entered the restaurant and approached Ozdemir from behind. Ozdemir asked defendant if he could help him and defendant responded "[M]other[-]fucker[,] give me the money." Defendant began to choke Ozdemir, who fought back by trying to throw defendant against a wall. Defendant bit Ozdemir on the top left portion of his head, leaving a circular wound. Ozdemir tried to pull defendant out the front door, and defendant punched Ozdemir, causing his nose to bleed. Ozdemir ran back into the restaurant toward the kitchen and, realizing defendant was following him, threw two glasses at defendant. Defendant then fled using the back door of the restaurant. While fleeing, defendant tripped and fell. Ozdemir went to lock the back door and saw defendant lying on the ground with blood around him. Ozdemir locked the door and called the police.
Several officers responded to the scene and began collecting evidence, including samples of blood and saliva from Ozdemir's head wound and samples of the blood found on the ground near the back door of the restaurant. The samples were sent to the State Police Laboratory. Comparison of the DNA samples collected revealed defendant as a potential match to a sample in a database. On September 7, 2012, the police met with defendant to obtain four swabs of DNA from defendant's mouth pursuant to a search warrant. A forensic scientist from the New Jersey State Police Office of Forensic Science DNA Laboratory examined the samples and reported that defendant was identified as the source of the blood from the ground at the crime scene, as well as the saliva taken from Ozdemir's head wound.
On February 26, 2013, defendant was indicted for second-degree attempted robbery pursuant to N.J.S.A. 2C:15-1a(1). He was tried before a jury and convicted of the sole count of the indictment.
On appeal, defendant raises the following arguments:
POINT I
MR. DRAYTON WAS DENIED DUE PROCESS AND A FAIR TRIAL BY THE ASSISTANT PROSECUTOR'S COMMENTS IN SUMMATION, IN WHICH SHE ATTEMPTED TO DIVERT THE JURORS' ATTENTION AWAY FROM THE EVIDENCE BY URGING THEM TO "HOLD HIM ACCOUNTABLE." (Not Raised Below).
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY ON HOW TO EVALUATE MR. DRAYTON'S ALLEGED ORAL OUT-OF-COURT STATEMENT AND TO USE CAUTION IN SAID EVALUATION. (Not Raised Below).
POINT III
MR. DRAYTON'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
I.
We reject defendant's contention that his conviction should be reversed due to comments made by the prosecutor during summation. During the prosecutor's closing remarks to the jury, she stated the following:
Mr. Ozdemir is a small businessman. He works hard and he works long hours. And he had a right to wake up that morning and go to work and feel safe. He shouldn't have to worry about someone like [defendant] lurking in the dark waiting for the right opportunity to attack. [Defendant] took that sense of security away from Mr. Ozdemir. Hold him accountable. Hold [defendant] accountable for his actions in the night of March 5, 2012 and find him guilty.
Defendant did not object to these remarks at the trial. Errors complained of on appeal which were not first brought to the attention of the trial court are reversible only if "clearly capable of producing an unjust result[.]" R. 2:10-2. The possibility of an unjust result must be real and "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Our courts have said that a prosecutor should not urge jurors to "send a message" or argue that they must protect the community by rendering a guilty verdict. State v. Rose, 112 N.J. 454, 521 (1988); State v. Ramseur, 106 N.J. 123, 321-22 (1987). We have addressed "accountability" themes in summation. For example, in State v. Goode, 278 N.J. Super. 85, 89-91 (App. Div. 1994), we held that it was reversible error for a prosecutor to tell the jury "[t]his is finally your chance to make a difference" by convicting defendant, to suggest that an informant who did not testify was reliable, to contend that police had no motive to lie, and to invite jurors to consider similar past convictions as evidence of guilt in the present case.
Similarly, in State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003), we found it improper for a prosecutor to ask the jury to
[hold defendant] accountable for what he did. I'm asking you to held [sic] him accountable for the lies that he told. I'm asking you to hold him accountable for the betrayal of his oath; not only the oath that he took in Grand Jury but his oath as a School Board member. I'm asking you to hold him accountable for the betrayal of the children [of] Asbury Park."We found these remarks improper because the theme of defendant's betrayal was woven throughout the case, making the prosecutor's remarks at summation egregious conduct having the capacity to deprive defendant of a fair trial. Id. at 537-38.
[(second and third alterations in original).]
Furthermore, in State v. Hawk, 327 N.J. Super. 276, 282-85 (App. Div. 2000), we reviewed a summation wherein the prosecutor asked the jury to hold defendant "accountable for his actions" and informed the jury that a guilty verdict would "send a message[.]" We found the remarks "were inappropriate, inflammatory and constitute[d] misconduct[,]" and concluded that they amounted to reversible error because the prosecutorial misconduct occurred in combination with inappropriate bolstering of police credibility and other improper remarks which we found had a "very real likelihood of denying defendant a fair trial." Ibid.
In this matter we do not consider the prosecutor's remarks to rise to the level of denying defendant a fair trial. When we have found reversible error based on the theme of accountability, the remarks have always been compounded by other errors and instances of prosecutorial misconduct. While the prosecutor's remark here demonstrated a lapse in judgment, defendant points to no other prejudicial remarks made by the State, nor do we discern any after reviewing the record.
II.
We also reject defendant's argument that the trial court committed reversible error by not charging the jury on how to evaluate the alleged oral statement of defendant pursuant to State v. Kociolek, 23 N.J. 400 (1957), and State v. Hampton, 61 N.J. 250 (1972). Defendant did not object to the court's failure to issue the Kociolek/Hampton charges at trial, and we employ the plain error standard in reviewing this claim. R. 2:10-2.
Kociolek/Hampton requires that the jury be instructed to weigh and consider the accuracy of out-of-court statements in view of the recognized risks of inaccuracy associated with such statements. Kociolek, supra, 23 N.J. at 421; Hampton, supra, 61 N.J. at 271-72. In State v. Jordan, 147 N.J. 409, 428 (1997), the Court held that Kociolek/Hampton charges should be given, whether requested or not, whenever a defendant's out-of-court statements are admitted into evidence, but also held that the failure to give an instruction "is not reversible error per se" if the facts of the case show that omission of the charge was not capable of producing an unjust result. Id. at 430.
Here, Ozdemir testified that a man entered his store, came up behind him, demanded money, said "[M]other[-]fucker[,] give me the money[,]" and then attacked him. Defendant had an opportunity to cross-examine Ozdemir. Throughout the trial, however, defendant conceded that a robbery occurred but denied that he was the man who entered the store, demanded money, and assaulted Ozdemir. There was no dispute about the accuracy of Ozedmir's statement, and defendant never challenged its credibility. In the context of the entire case, we do not consider this to be clearly capable of producing an unjust result. R. 2:10-2.
III.
Defendant also challenges his sentence as excessive and unduly punitive. We reject that assertion as well. The sentencing court imposed a ten-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, for second-degree robbery. We conclude that the findings of fact regarding the aggravating and mitigating factors were based on competent and credible evidence in the record, the sentencing guidelines were correctly applied, and the judge reached a conclusion that could have properly been made weighing all of the relevant evidence. State v. Ghertler, 114 N.J. 383, 387-88 (1989).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION