Opinion
DOCKET NO. A-0310-10T4
05-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLIFTON FOSTER, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter, Nugent and Carchman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-07-1078.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In 2009, defendant Clifton Foster was indicted for first-degree robbery, N.J.S.A. 2C:15-1, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The jury acquitted defendant of both counts, but found him guilty of the lesser-included charge of third-degree aggravated assault. The jury further found that defendant's assault was not justified by self-defense. At sentencing, the judge granted the State's request for imposition of a discretionary extended term and sentenced defendant to eight years of imprisonment with four years of parole ineligibility, as well as other penalties and assessments. Defendant appeals this conviction and sentence. We affirm.
Defendant is also known as Hassan Akbar, Clifton Forrester, Clifton Foster, Clifton O. Foster, Abu H. Muhammad, Ibm Muhammad, Hassan K. Reid, Gary Richardson, and Hassan K. Ried.
Defendant was also indicted for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; however, the State moved to dismiss this charge at the beginning of trial.
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I.
These are the facts as adduced from the trial. On the afternoon of October 15, 2008, Larry Williams was helping George Curtis unload lumber into the basement of Curtis' store in Newark, when defendant approached. Both Curtis and Williams knew defendant from the neighborhood. Defendant began to assist with unloading the lumber into the basement, though neither Curtis nor Williams requested defendant's help. After the work was completed, Curtis paid Williams. According to Williams, Curtis paid him $50 in one-dollar bills, while Curtis claims he paid Williams only $18.
Defendant then asked Williams who was going to pay him. Williams told defendant that he had no money to give him and to ask Curtis for the money. As Williams began to walk away, defendant struck Williams on the right side of the face with a closed fist, which caused Williams to fall to the ground and lose consciousness. Eventually, Williams ran from the scene to University Hospital. As he was running away, Williams heard defendant say, "[y]ou better not go get the police or we're going to get your brother." When he arrived at the hospital, Williams called the police. He also noticed that his left pants pocket was ripped and his money was missing: $150 in welfare money and the $50 he received from Curtis.
Curtis indicated that, when defendant asked Williams for money, defendant put his hand out to Williams, at which point Williams swung at defendant, defendant swung back, and the two started fighting. After approximately five to ten seconds of fighting, Williams ran off. According to Curtis, Williams did not fall to the ground or lose consciousness. Curtis also did not see defendant grab Williams' pocket.
At the hospital, Williams was treated by oral surgeons for a displaced fracture to his right jaw and a non-displaced fracture to his left jaw. His face was swollen and he could not open his mouth. Williams admitted to hospital personnel that he had ingested cocaine that day.
Williams also stated that, on July 15, 2009, he ran into the defendant, at which time defendant threw up his hands like he was going to "get" Williams. Defendant then said to a friend, who was present at the time, "yea, I broke his jaw."
The judge made a number of rulings during the trial, which defendant now challenges. We will describe those rulings during our analysis of those substantive claims.
II.
On appeal, defendant raises the following issues:
POINT I
THE ADMISSION OF TESTIMONY REGARDING UNCHARGED THREATS ALLEGEDLY MADE BY DEFENDANT WAS IMPROPER OTHER CRIME EVIDENCE WHICH DENIED HIM A FAIR TRIAL.
POINT II
THE LIMITATION OF THE CROSS-EXAMINATION OF THE ALLEGED VICTIM, MR. WILLIAMS, INFRINGED UPON THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND HIS RIGHT TO A FAIR TRIAL.
POINT III
IT WAS ERROR FOR THE TRIAL COURT TO ADMIT THE PHOTOGRAPHIC ARRAYS INTO EVIDENCE.
POINT IV
THE FAILURE OF THE COURT TO IMMEDIATELY EXCUSE JUROR #4 AND INDIVIDUALLY VOIR DIRE THE JURY PANEL DENIED DEFENDANT A FAIR TRIAL.
POINT V
THE PROSECUTOR'S CROSS-EXAMINATION AND COMMENTS REGARDING THE DEFENSE WITNESS' REFUSAL TO GIVE A RECORDED STATEMENT WAS GROSSLY IMPROPER AND DENIED DEFENDANT A FAIR TRIAL.
POINT VI
CERTAIN STATEMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION WERE GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not [r]aised below).
POINT VII
THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF EIGHT (8) YEARS WITH FOUR (4) YEARS OF PAROLE INELIGIBILITY FOR A THIRD[-]DEGREE OFFENSE WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).
POINT VIII
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL[.] (Not raised below[]).
A.
Defendant argues that the trial court erroneously admitted evidence of other crimes, specifically, Williams' testimony that: (1) immediately after the assault, defendant said, "[y]ou better not go get the police or we're going to get your brother[,]" and (2) approximately seven months after the assault, defendant said to a friend, "yea, I broke [Williams'] jaw."
The admission of evidence is left to the sound discretion of the trial court. State v. Gillispie, 208 N.J. 59, 84 (2011). In particular, trial court decisions concerning other-crimes evidence "should be afforded 'great deference,' and will be reversed only in light of a 'clear error of judgment.'" Ibid. (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)).
N.J.R.E. 404(b) provides that:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The New Jersey Supreme Court has articulated a four-part test to determine if other-crimes evidence is admissible at trial:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Rose, 206 N.J. 141, 159-60 (2011) (citation omitted).]
This test, derived from the seminal case of State v. Cofield, 127 N.J. 328 (1992), protects against the underlying danger that the jury may convict the defendant for one crime based on evidence of other crimes because the jurors perceive him to be a bad person in general. Rose, supra, 206 N.J. at 159 (citing Cofield, supra, 127 N.J. at 336).
As an initial matter, we note that defendant's admission that he broke Williams' jaw, without more, is not evidence of other crimes, but rather evidence of the crimes charged. The Cofield analysis is inapposite to the admission of such evidence, and we see no error in the trial court's decision to admit evidence of this admission by the defendant. See N.J.R.E. 803(b)(1). However, to the extent this act was characterized at the trial as an attempt by defendant to intimidate Williams into not testifying -- specifically, by defendant throwing up his hands like he was going to "get" Williams -- the Cofield analysis applies, and we address it below.
The first Cofield prong requires relevance and materiality, i.e. "'a tendency in reason to prove or disprove any fact of consequence to the determination of the action.'" Rose, supra, 206 N.J. at 160 (quoting N.J.R.E. 401). This standard is a generous one. Ibid. "If the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excludable by a rule of law." State v. Darby, 174 N.J. 509, 519 (2002) (citations and internal quotation marks omitted). Moreover, "[w]hen an individual's state of mind is at issue, a greater breadth of evidence is allowed" because "mental state is not conducive to demonstration through direct evidence." State v. Williams, 190 N.J. 114, 124-25 (2007). We agree with the trial court's finding that defendant's threats were relevant to showing consciousness of guilt, particularly in light of defendant's claim of self-defense. An attempt by defendant to intimidate Williams into not contacting the police or not testifying at trial makes it more logical that defendant felt guilty about assaulting Williams, and, concomitantly, less logical that defendant felt justified in his actions.
The second prong, which requires similarity and temporality, applies only to cases with fact patterns similar to Cofield, in which the State sought to prove an instance of constructive drug possession by admitting evidence of a different instance of drug possession. See Rose, supra, 206 N.J. at 160; Williams, supra, 190 N.J. at 131. The second prong is not relevant here.
The third prong requires proof of the other crimes by clear and convincing evidence. We are satisfied that Williams' testimony meets this requirement.
The fourth prong requires the probative value of the proffered evidence to outweigh its apparent prejudice. New Jersey courts have recognized this prong as the most difficult to overcome. Gillispie, supra, 208 N.J. at 89; Rose, supra, 206 N.J. at 160. This prong is "more exacting than [N.J.R.E.] 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice." Rose, supra, 206 N.J. at 161. It requires a careful balancing of the competing interests. Barden, supra, 195 N.J. at 392.
We agree with the trial court that the prejudice of admitting defendant's statements did not outweigh its probative value. The fact that, during the course of the assault, defendant threatened Williams' brother in order to dissuade Williams from contacting the police, does not create a significant risk that the jury will perceive defendant as a person with a propensity to commit crimes. Also, while evidence that defendant tried to intimidate Williams more than seven months after the incident may carry a greater risk of being seen as propensity evidence, this risk does not outweigh the probative value of the evidence on the issue of defendant's consciousness of guilt.
Finally, defendant maintains that the trial court failed to give an adequate limiting instruction. Where other-crimes evidence is admitted, the court must instruct the jury on the limited use of the evidence. Barden, supra, 195 N.J. at 390; Cofield, supra, 127 N.J. at 340-41. That instruction "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Barden, supra, 195 N.J. at 390 (citation and internal quotation marks omitted). The instruction should be given both when the evidence is presented and in the final jury charge. Ibid.
Here, the trial court gave no limiting instruction when the other-crimes evidence was presented. However, during the jury charge, the court instructed the jury on the limited purposes for which such evidence could be used.
The defendant [sic] contends that the defendant told Mr. Williams you better not call the police or I'm gonna get your brother. That's a rough paraphrase. In considering whether or not the statement is credible you should take into consideration the circumstances in fact as to how the statement was made as well as all other evidence in this case relating to this issue. If, after considering all of these factors, you determine that the statement was not made or that the statement is not credible you must regard [sic] the statement completely. If you find, however, that the statement was made and that all or part of the statement was credible you may then give it what weight you think appropriate the portion of the statement you find to be truthful and credible.
The State has also introduced evidence that on July 15, 2009 the defendant threatened Mr. Williams if Mr. Williams continued to press charges against the defendant. Normally such evidence is not permitted under our rules. Our Rules of Evidence specifically exclude evidence that a defendant has committed other crimes or wrongs or acts when it is offered only to show that he has a disposition or tendency to do wrong and, therefore, must be guilty of the charged offenses.
Before you can give any weight to this evidence you must be satisfied that the defendant actually made this threat and if you are not satisfied you may not consider his statement for any purpose. However, our
rules do permit evidence of other crimes, wrongs or acts when the evidence is used for certain narrow purposes.
In this case the evidence is being offered to try to convince you that this statement made by the defendant is evidence of a consciousness of guilt on his part regarding the offense at issue. You may not draw this inference unless you conclude that the act alleged was an attempt by the defendant to cover up the crime with which he is charged.
Whether the evidence does in fact demonstrate consciousness of guilt is for you to decide. You may decide that the evidence does not demonstrate consciousness of guilt and is not helpful to you at all. In that case you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate consciousness of guilt and you may use it for . . . that specific purpose. However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is[,] you may not decide that just because the defendant has committed other crimes or other acts he his guilty of the crime with which he is currently charged. I have admitted this evidence only to help you decide the specific question of consciousness of guilt. You may not consider it for any other purpose and you may not find the defendant guilty now simply because the State has offered evidence that he has committed other crimes, wrongs or acts.
The better practice would have been for the trial court to issue a limiting instruction at the time the evidence was admitted. However, given the relatively low risk of undue prejudice posed by the evidence of defendant's statements, and the trial court's thorough limiting instruction during the jury charge, any error in this respect was harmless. See State v. G.S., 145 N.J. 460, 476 (1996) (finding that in light of "all the testimony and evidence, defense counsel's use of the . . . evidence, and the trial court's cautionary instructions[,] . . . the jury was not misled in this case into using the other-crime evidence as demonstrating criminal propensity"); State v. Cusick, 219 N.J. Super. 452, 467 (App. Div.) (finding that "'the failure to give the instruction had no such real possibility for prejudice as to warrant a conclusion that, by reason thereof, the jury arrived at the wrong result'") (citation omitted), certif. denied, 109 N.J. 54 (1987).
B.
Defendant next contends that, by prohibiting him from cross-examining Williams regarding (1) Williams being homeless, and (2) Williams' prior drug use, the trial court infringed upon the defendant's right to confrontation and right to a fair trial. According to defendant, Williams' homelessness was relevant to discrediting his claim that he was in possession of $200, and Williams' prior drug use was relevant to evaluating his ability to perceive and recall the details of the incident.
Under both the United States and New Jersey Constitutions, defendants have a right to be confronted with the witnesses against them. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. However, "a cross-examiner does not have a license to roam at will under the guise of impeaching credibility." State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991). The scope of cross-examination rests in the broad discretion of the trial court, and we will not interfere with such control unless clear error and prejudice are shown. State v. Wakefield, 190 N.J. 397, 451-52 (2007).
Unless otherwise excluded by the Rules of Evidence, all relevant evidence is admissible. N.J.R.E. 402. "Relevant evidence" is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "'The standard for the requisite connection is generous: if the evidence makes a desired inference more probable than it would be if the evidence were not admitted, then the required logical connection has been satisfied.'" Rose, supra, 206 N.J. at 160 (quoting Williams, supra, 190 N.J. at 123). The evidence must also "bear on a material issue in dispute." Ibid. However, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403.
The trial court did not abuse its discretion by prohibiting defendant from cross-examining Williams regarding either his being homeless or his prior drug use on the basis of relevancy and undue prejudice. The fact that Williams was homeless bore only a marginal relationship, if any, to the credibility of his claimed possession of $200, whereas it had the potential to unduly disparage or impugn his character. In addition, the trial court made clear that defendant could use other means to test Williams' veracity, such as by asking where he obtained the money or whether he was employed. Defendant also presented Curtis as a defense witness, who testified that he gave Williams only $18, not $50 as Williams claimed. Finally, even assuming arguendo that the trial court did err, that error was harmless given the fact that the jury acquitted defendant of robbery.
Similarly, the fact that Williams had used drugs in the past was only marginally relevant to his ability to perceive and recall the events on the day of the assault, whereas it had the potential to cause the jury to draw a negative inference regarding Williams' character by portraying him as a habitual drug user. Moreover, the court permitted questioning regarding whether Williams was on drugs at the time the incident occurred, and to what extent this fact may have affected his ability to perceive and recall the assault. The trial court did not abuse its discretion in placing these limits on the scope of Williams' cross-examination.
C.
Defendant claims that the trial court abused its discretion by allowing admission of a photograph of defendant, which the police had presented to Williams after the assault and which Williams identified as a photograph of the person who assaulted him. The photograph bore the Newark Police Department logo at the top and Williams' signature confirming his positive identification. Defendant maintains that the photograph was irrelevant because identity was not an issue at trial, and was unduly prejudicial because it suggested that defendant had prior criminal contact with the police.
However, as the State aptly notes, defendant attempted to impeach Williams by referencing his drug use, making the photograph, and Williams' identification of it shortly after the assault, relevant to combating that impeachment. Also, contrary to defendant's suggestion, there is no indication from the record that photograph appeared to be a "mug shot." The mere fact that the police had a photograph of the defendant, and that the photograph bore the Newark Police Department logo, does not carry the same risk of suggesting that defendant was previously arrested and incarcerated as, for example, a photograph of a defendant in orange jail clothing. See State v. Burton, 309 N.J. Super. 280, 288 (App. Div.), certif. denied, 156 N.J. 407 (1998).
Finally, in its charge to the jury, the trial court properly instructed the jury that "[s]uch photographs come into the hands of law enforcement from a variety of sources," and that the photograph is "not evidence that the defendant has ever been arrested or convicted of any crime." We see no reason why the photograph here was so suggestive that "no instruction . . . could effectively and realistically neutralize the prejudice to defendant," id. at 289, and we presume that the jury followed the court's instruction, see State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
D.
On the second day of trial, a juror reported to the court that she heard Williams talking with his wife outside of the courtroom about the assault. The juror heard Williams say "he hit me and I stumbled over -- I hurt him." The juror indicated that she did not realize Williams was the victim at the time, and that the incident would not affect her evaluation of the case. The State requested that the juror be excused immediately, while defendant opposed this request. The trial court allowed the juror to remain, and instructed the juror not to discuss the incident with anyone else on the jury. The juror indicated that she understood this instruction. On the last day of trial and prior to summations, the court reversed its decision and excused the juror. The juror stated that she had not discussed the incident with her fellow jurors. The court did not voir dire the remaining panel.
Defendant argues that the trial court should have excused the juror immediately and, after ultimately excusing the juror, should have interviewed the remaining panel to "ensure the absence of any juror taint."
The United States and New Jersey Constitutions guarantee a criminal defendant's right to a fair trial before an impartial jury. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The right to an impartial jury "is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). It includes "the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001). Where a juror is tainted, the test for whether that taint influenced other members of the panel is not whether the juror's presence "'actually influenced the result, but whether it had the capacity of doing so.'" Loftin, supra, 191 N.J. at 190 (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).
A trial court's determination of juror taint is reviewed for abuse of discretion. R.D., supra, 169 N.J. at 559.
Ultimately, the trial court is in the best position to determine whether the jury has been tainted. That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings.
[Ibid.]
While a trial judge must make his or her own objective evaluation of the potential for prejudice, the judge may rely in part on a juror's subjective belief in his or her own impartiality. State v. Scherzer, 301 N.J. Super. 363, 491 (App. Div.), certif. denied, 151 N.J. 466 (1997).
We need not decide whether the trial court erred in failing to excuse the juror immediately, as this issue became moot when the court reversed its decision. However, to the extent that the excused juror's presence may have influenced the rest of the panel, we note that the court's initial decision not to excuse the juror did not constitute an abuse of discretion. Williams' comment to his girlfriend was brief and nonspecific. The court was entitled, under those circumstances, to rely upon the juror's belief that she could remain impartial.
The court also did not abuse its discretion in choosing not to voir dire the remaining panel members after she excused the juror. A trial court need not voir dire the entire jury panel in all instances where one juror is tainted; the court may instead determine that voir dire is unnecessary based on the excused juror's answers to searching questions by the court. R.D., supra, 169 N.J. at 560-61. "In some instances, the court may find that it would be more harmful to voir dire the remaining jurors because, in asking questions, inappropriate information could be imparted." Id. at 561. Given the low risk of prejudice posed by Williams' overheard comment, the court's instruction to the juror not to discuss it with her fellow jurors, her acknowledgement of that instruction, and her denial at the time she was excused that she had discussed the incident with her fellow jurors, the court acted within its discretion by declining to voir dire the remaining panel. The risks posed by conducting such a voir dire, and thereby exposing the jury to potentially inappropriate information, far outweighed the risk that the excused juror's presence during the trial improperly influenced the remaining jurors.
E.
Defendant asserts that the State denied defendant a fair trial when it attempted to portray Curtis, a defense witness, as biased based on the fact that: (1) Curtis refused to allow recording of an interview of Curtis by the State, (2) Curtis came to the interview with defendant's attorney and defendant's investigator, and (3) during the interview, Curtis consulted with defendant's attorney and defendant's investigator, outside of the presence of the interviewers.
New Jersey courts have recognized that prosecutors have the "double calling" to "represent vigorously the [S]tate's interest in law enforcement and at the same time help assure that the accused is treated fairly and that justice is done[.]" State v. R.B., 183 N.J. 308, 332 (2005) (quoting State v. Ramseur, 106 N.J. 123, 323-24 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993)).
Prosecutors are expected to make a vigorous and forceful closing argument to the jury, and are afforded considerable leeway in that endeavor. Nevertheless, there is a fine line that separates forceful from impermissible closing argument. Thus, a prosecutor must refrain from improper methods that result in wrongful conviction, and is obligated to use legitimate means to bring about a just conviction.
[State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Jenewicz, 193 N.J. 440, 471 (2008)).]
To justify reversal, a prosecutor's conduct "'must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense.'" Ibid. (quoting State v. Harris, 181 N.J. 391, 495 (2004)). Prosecutors are therefore "afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999).
Defendant has failed to demonstrate how the State's conduct here was "clearly and unmistakably improper" and "substantially prejudiced the defendant's fundamental right" to a fair trial. Defendant claims that "[t]here is no obligation of a witness to give a recorded statement and it is prejudicial for the State to infer otherwise." However, the State did not suggest that Curtis had an obligation to give a recorded statement, only that his reluctance to do so bore on the issue of his credibility, and defendant has cited no cases in support of the proposition that such behavior by the State is improper.
Defendant also asserts that "[t]he question and comments of the [p]rosecutor inferred collusion between the defense and the witness." However, this statement is incorrect. Regarding the defense attorney's presence at the interview, the State said the following in summation:
[W]hen [Curtis] comes to the prosecutor's office to -- to do an interview, does he come alone like an impartial witness? No. He decides well, I want someone with me so he comes with the defense attorney and the defense attorney's detective, and then you know what, he doesn't even want to come inside and give a statement, an impartial statement as to the truth. No, he wants to come and give a statement with the defense attorney and defense attorney's detective. . . . Before he can make a complete informed . . . decision as to what he wanted to do he had to discuss this with who? The defense attorney and the defense attorney's detective. Does that sound . . . like an impartial witness, a witness who has nothing to gain from this, who has no other motive, or does this sound like a person that clearly has one side in mind, that clearly is trying to gain favor with one -- his testimony is trying to gain favor of one side? George Curtis is not an impartial witness. He's clearly a person that only had one person's interest in mind, and his testimony demonstrated this.
The State never said, or even suggested, that defendant's attorney was colluding with Curtis, only that Curtis' behavior demonstrated bias on his part.
Defendant suggests that the State's behavior violated defendant's right against self-incrimination and lack of an obligation to establish his innocence. See, e.g., State v. Muhammad, 182 N.J. 551, 569 (2005) (noting that the State cannot comment on defendant's silence at or near the time of arrest); State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003) (noting that defendant has no obligation to establish his innocence, testify, or proffer an affirmative defense, and it is improper for the State to say or suggest otherwise). However, the State did none of these things. Defendant chose to offer Curtis as a witness for the defense, and as a result, the State was entitled to impeach Curtis with evidence of bias.
Finally, as the State notes, defendant made no objection to the State's summation. "'Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made.'" State v. Echols, 199 N.J. 344, 360 (2009) (quoting State v. Timmendequas, 161 N.J. 515, 576 (1999)).
F.
Defendant maintains, for the first time on appeal, that certain statements made by the prosecutor during summation deprived defendant of a fair trial. In addition to the statements made about Curtis, which we previously noted, defendant takes issue with two comments made by the prosecutor during closing argument. First, the prosecutor stated that "[n]ot one of [Williams' past convictions] was for a violent crime." Second, the prosecutor asserted that Williams had identified defendant as the assailant three times before, including at the grand jury, but that "[w]e're all restricted to the Rules of Evidence, and the fact that they're consistent means that you can't have them in evidence."
While prosecutors "'are expected to make a vigorous and forceful closing argument to the jury, and are afforded considerable leeway in that endeavor[,]'" Ingram, supra, 196 N.J. at 43 (citation omitted), they "may not make inaccurate factual or legal assertions during summation, and they must confine their remarks to evidence revealed during trial, and reasonable inferences to be drawn from the evidence." State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).
The prosecutor's two comments bordered the line of propriety. Although defendant did claim that Williams was the aggressor, Williams' character for violence or peacefulness was not an issue, and Williams' past convictions were not in evidence to prove or disprove such character traits. See N.J.R.E. 404(a)(2) (noting that evidence of a pertinent character trait of a victim may be offered by the prosecution only to rebut character evidence of the victim offered by the accused). With regard to the prosecutor's reference to Williams' grand jury testimony, the State claims that "the prosecutor was fairly explaining to the jury why certain pieces of evidence, referenced several times during the trial, would not be available for the jury's inspection during deliberations." Even assuming these were the prosecutor's motives, his comment that Williams' past statements were "consistent" with his trial testimony went beyond the evidence in the record and sought to bolster Williams' credibility.
However, the fact that defendant made no objection to the State's summation "'indicates that defense counsel did not believe the remarks were prejudicial at the time they were made.'" Echols, supra, 199 N.J. at 360 (quoting Timmendequas, supra, 161 N.J. at 576). Also, the prosecutor's complained-of remarks were brief and isolated. See State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). As a result, we find that these comments were not "clearly capable of producing an unjust result," R. 2:10-2, and will not deem them prejudicial.
Finally, defendant suggests that the prosecutor improperly gave his personal or professional belief regarding the truth of testimony or the veracity of witnesses. See State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963). However, defendant fails to cite any examples of such conduct.
G.
Defendant challenges the trial court's imposition of an extended-term sentence of eight years imprisonment with four years of parole ineligibility. Specifically, defendant claims that: (1) an extended term was not warranted by the facts of the assault, and (2) the facts supported a finding of certain mitigating factors.
Appellate review of the length of a sentence is narrow, and governed by the abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). We must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). In doing so, we will not substitute our assessment of the aggravating and mitigating factors for the trial court's judgment. State v. Miller, 205 N.J. 109, 127 (2011). We must also decide whether the sentencing court applied correct legal principles in exercising its discretion. Blackmon, supra, 202 N.J. at 297. We will not reverse a sentence unless "the application of the facts to the law has resulted in a clear error of judgment or a sentence . . . 'shocks the judicial conscience.'" Ibid. (quoting Roth, supra, 95 N.J. at 363-65).
A third-degree crime is ordinarily punishable by a term of imprisonment between three and five years. N.J.S.A. 2C:43-6a(3). However, upon application of the prosecutor, the court may sentence a person convicted of a third-degree crime to an extended term of imprisonment if the person is a "persistent offender." N.J.S.A. 2C:44-3a. When subject to an extended term, a third-degree crime is punishable by a term of imprisonment between five and ten years. N.J.S.A. 2C:43-7a(4).
"In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). When fixing a sentence in the extended range, the court may consider, in addition, the "'protection of the public.'" State v. Hudson, 209 N.J. 513, 527 (2012) (quoting State v. Pierce, 188 N.J. 155, 170 (2006)).
As part of the sentence for any crime, the court may also fix a period of parole ineligibility of up to one-half of the sentence "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors[.]" N.J.S.A. 2C:43-6b. Periods of parole ineligibility should be the exception, not the rule. State v. Martelli, 201 N.J. Super. 378, 382 (App. Div. 1985).
Defendant does not challenge his eligibility for an extended term sentence as a persistent offender. He challenges the trial court's exercise of its sentencing discretion in choosing to impose an extended term and in imposing a period of parole ineligibility.
In sentencing defendant to an extended term of eight years imprisonment -- two years below the maximum -- and in imposing a four-year period of parole ineligibility, the trial court said:
This defendant has been arrested twenty-seven times. His arrests have been for [drug-]related offenses, robbery, sexual assault, aggravated assault, weapons[-]related activity, and burglaries. He has nine indictable convictions[,] which are for robbery, aggravated assault, burglary, terroristic threats, theft, unlawful possession of handgun, and possession of [drugs], in addition to five disorderly persons' offenses.
. . . .
The [c]ourt finds that there are no mitigating factors in this case.
The aggravating factors are substantial. The defendant[,] who is much larger than the victim in this case according to the undisputed evidence[,] pretty much sucker punched the victim and blind-sided him with that punch that
according to the victim broke his jaw in two separate places. This is a violent crime.
The types of crimes of which this defendant has been previously convicted also indicate a propensity to violence. . . . [T]he [c]ourt finds a high risk that this defendant will commit another offense[.] . . . There's absolutely no evidence [that defendant has reformed]. . . . Instead, the undisputed criminal history reflects that numerous . . . prison sentences have failed to deter [defendant] from violating the law and that he is a risk to the public.
The [c]ourt also finds that, therefore, there's a need to deter [defendant] from violating the law and that there is a need to protect the public.
Accordingly, the [c]ourt finds that the aggravating factors in this case substantially outweigh any mitigating factors[,] of which the [c]ourt found none[.] . . .
This thorough and well-reasoned decision is supported by competent credible evidence in the record. See Bieniek, supra, 200 N.J. at 608. Given defendant's history of violent crimes and the fact that he broke Williams' jaw in two places, defendant's attempt to downplay the violent nature of his crime and the seriousness of Williams' injuries is unavailing, as is his claim that mitigating factors one (that defendant's conduct neither caused nor threatened serious harm) and two (that defendant did not contemplate that his conduct would cause or threaten serious harm) apply.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION