Opinion
DOCKET NO. A-2101-12T1
12-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY T. JOHNSON, Defendant-Appellant.
Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-12-1200. Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, on the brief). PER CURIAM
Defendant appeals from his convictions for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree unlawful possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. We affirm.
Defendant's girlfriend (the "girlfriend") testified that she attended a barbeque with the victim at a friend's house a few weeks before the killing. The girlfriend entered the house intending to bring food upstairs. As she ascended the steps, the victim, who had known defendant for years, lifted up the girlfriend's skirt (the "skirt incident"). Later that night, the girlfriend told defendant what the victim had done, asked him to do something about it, but "not too long after [that,]" the girlfriend told defendant not to worry about it.
Two days before the shooting, defendant approached the victim and, referring to the skirt incident, told the victim to "keep his hands to himself." Defendant indicated that he thought that the matter had been resolved, but he testified that the next day, the victim approached the girlfriend to "put [the girlfriend] in her place." The day after that, defendant killed the victim.
Defendant testified that on the day of the murder, he went to visit his uncle who lived across the street from the victim's girlfriend's apartment building (the "building"). The victim was outside the building and called out to defendant. The two exchanged words, and defendant attempted to enter the building so he could tell the victim's girlfriend about the skirt incident. Defendant testified that as he walked into the vestibule of the building, the victim attacked him from behind, threw defendant against the wall, and hit defendant's body repeatedly. As the victim wrapped his hands around defendant's neck, defendant reached for a gun from defendant's back pocket, pulled the trigger, and shot the victim in the bicep. The bullet entered the victim's chest and he later died from internal bleeding.
Defendant drove away from the scene and called someone with whom defendant had previously lived (the "friend"). The friend testified that defendant said he needed to talk to him. Defendant arrived at the friend's house. The friend testified that defendant did not look like he had just been in a fight, he was not bleeding, and had no marks on him. The friend also testified that defendant said, "I fucked up. I fucked up. . . . I shot [the victim]." He then drove defendant to work.
Defendant left his place of employment and called the friend and another individual (the "other individual") asking them to meet him near the highway and drive him to defendant's mother's home in New York. They located defendant near the New Jersey Turnpike, picked him up, and started driving. The other individual testified that a minute or so later, defendant called his mother and said that "he walked up to [the victim] and shot him once in his chest."
Three days later, the police arrested defendant in New York. The next day, defendant gave the police a statement admitting that he had confronted the victim, but that the victim denied the skirt incident and made fun of defendant. At first, defendant stated to the police that the victim possessed the gun, but defendant later acknowledged that defendant had the gun on him. Defendant explained that he initially lied to the police about the gun because he was "scared" and "shook" when they charged him with committing murder.
The State also produced expert testimony from a forensic pathologist and ballistics witness, as well as several other fact witnesses. Defendant asserted self-defense and called character witnesses on his own behalf, but the jury found defendant guilty of murder and the related weapons offenses after a seven-day trial.
Defendant moved for a new trial contending that the assistant prosecutor engaged in prosecutorial misconduct by making improper statements during his summation. The judge denied that motion and imposed an aggregate prison term of thirty-seven years with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant argues the following points:
POINT I
REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR REPEATEDLY EXPRESSED HIS OWN MOCKING DISBELIEF OF THE DEFENDANT'S TESTIMONY; AGGRESSIVELY PUSHED A MOTIVE CONTRARY TO UNCONTROVERTED TRIAL EVIDENCE; EXHORTED THE JURY THAT JUSTICE REQUIRED A CONVICTION; AND GROSSLY DISTORTED HIS OWN EXPERT'S TESTIMONY REGARDING KEY EVIDENCE, ALL WHILE PERFORMING INACCURATE AND HIGHLY PREJUDICIAL DEMONSTRATIONS. (Partially Raised Below).
A. The Prosecutor Openly Expressed Disdain And Disbelief Of [Defendant's] Testimony, Denigrating The Defense.
B. The Prosecutor Concocted And Repeatedly Argued A Motive Inconsistent With Trial Evidence.
C. The Prosecutor Repeatedly Told The Jury That [Defendant] Recently Fabricated His Testimony That He Was Carrying The Gun For Protection, Despite [The Friend And The Other Individual's] Testimony To The Contrary.
D. The Prosecutor's Attack On The Defense Of Self-Defense Through Inaccurate Demonstrations Was Contrary To The Trial Evidence And Immeasurably Damaging.
E. The Prosecutor Improperly Urged The Jury That Justice Required A Guilty Verdict.
F. These Incidences Of Prosecutorial Misconduct Individually And Cumulatively Denied [Defendant] A Fair Trial.
POINT II
THE TRIAL COURT'S FAILURE TO TAILOR ITS INSTRUCTION TO THE FACTS OF THE CASE, PARTICULARLY IN LIGHT OF THE PROSECUTOR'S MISLEADING EXPLANATION OF THE CHARGES AND LESSER-INCLUDED OFFENSES DEPRIVED [DEFENDANT] OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. (Not Raised Below).
POINT III
THIS COURT MUST REMAND FOR RESENTENCING BECAUSE THE RECORD DOES NOT SUPPORT THE JUDGE'S FINDINGS ON AGGRAVATING AND MITIGATING FACTORS, RESULTING IN A MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE SENTENCE.
A. Aggravating Factor (6) Does Not Apply Because [Defendant] Had No Prior Indictable Offenses Or Juvenile Record, Or Even An Arrest For Any Violent Offense Prior To The Incident In Question.
B. Aggravating Factor (9) Does Not Apply Because No More Deterrence Was Required Than The Minimum Sentence Of [Thirty] Years With A [Thirty]-Year Parole Disqualifier.
C. Mitigating Factors (3), (4), And (5) Apply Because [Defendant] Pulled The Trigger In Order To Ward Off [The Victim's] Attack.
D. Mitigating Factors (8) and (9) Apply Because [Defendant's] Only Prior Conviction Was For A Disorderly-Persons Marijuana Possession.
E. The Mitigating Factors Clearly Outweigh Any Properly-Found Aggravating Factors.
I.
We begin by addressing defendant's contention that the assistant prosecutor made several statements in his summation that deprived defendant of a fair trial.
We apply the plain error standard here because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Furthermore, "[t]he failure to object [at trial] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84. Defendant's failure to raise an objection in the face of prosecutorial misconduct "'also deprives the court of an opportunity to take curative action.'" State v. R.B., 183 N.J. 308, 333 (2005) (quoting Frost, supra, 158 N.J. at 84).
Applying these well-settled standards, we conclude that the assistant prosecutor's conduct was not so egregious as to deprive defendant of a fair trial.
A.
We reject defendant's contention that the prosecutor, on several occasions, impermissibly denigrated defendant and expressed his own opinion as to defendant's credibility.
Defendant points to instances where the assistant prosecutor referred to defendant's testimony as a "cockamam[ie] story" and "made-up facts." Defendant also takes issue with the tone and expressions used by the assistant prosecutor during summation.
We have listened to a DVD of the summations.
The prosecutor's comments, which challenged the credibility of defendant's testimony, were "reasonably related to the scope of the evidence presented[,]" and thus, constituted fair comment. Frost, supra, 158 N.J. at 82. The prosecutor questioned the believability of defendant's self-defense by referring to testimony from witnesses who saw defendant after the shooting without any signs of fighting. The prosecutor also highlighted defendant's admission that defendant fabricated his statement to the police.
B.
Defendant is correct that the assistant prosecutor aggressively argued that the girlfriend was ending her relationship with defendant because he had not stood up to the victim. Although the girlfriend initially wanted defendant to do "something" about the skirt incident, she then told defendant not to worry about it, and testified accordingly.
It is well-established that prosecutors are allowed to make a "'vigorous and forceful presentation of the State's case[.]'" State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). In this instance, the assistant prosecutor asserted the State's theory of motive, which was permissible. See Frost, supra, 158 N.J. at 82 (stating "prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries"). We further emphasize that the judge instructed the jury that "[a]rguments, statements, remarks, openings, and summation of counsel are not evidence and must not be treated as evidence." The jury is presumed to have followed the court's instructions. State v. Smith, 212 N.J. 365, 409 (2012 ), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
C.
We disagree with defendant's assertion that in his summation, the assistant prosecutor performed an improper demonstration of the shooting and distorted the testimony from the State's expert as to the estimated distance between the gun and the victim at the time of the shooting.
Failing to object during summation not only "'deprive[d] the court of an opportunity to take curative action'" but shows that defense counsel did not find these comments and purported demonstration to be prejudicial. R.B., supra, 183 N.J. at 333 (2005) (quoting Frost, supra, 158 N.J. at 84). We are confident, however, that the judge properly instructed the jury that what the attorneys said was not evidence, and that they were the ultimate judges of the facts.
We also see no error when the assistant prosecutor held the gun during his summation. The assistant prosecutor did not demonstrate how defendant shot the victim. He held the weapon, the same gun that defendant used during his trial testimony, and merely commented about how the shooting occurred based upon the evidence presented at the trial.
Although the police were unable to recover the murder weapon the gun used at trial was of the same caliber and design.
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D.
Finally, defendant's contention that he was deprived of a fair trial because of the assistant prosecutor's remarks that the jury's "job is to find justice" is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We note that a prosecutor may tell jurors "to have the courage to render a verdict in accordance with the evidence" without jeopardizing defendant's right to a fair trial. State v. DiFrisco, 137 N.J. 434, 476 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
II.
Defense counsel argues for the first time that the judge erred by failing to sufficiently tailor the jury charge to the facts of the case.
Because this issue was not raised below, we review using the plain error standard. R. 2:10-2. When reviewing a jury charge under this standard, we consider, even in the face of a small error, whether "the charge as a whole thoroughly explained the law and was not clearly capable of producing an unjust result." State v. Robinson, 165 N.J. 32, 47 (2000). And "[w]e must also consider the charge in light of the arguments made by trial counsel, as those arguments can mitigate prejudice resulting from a less-than-perfect charge." Ibid.
Here, the judge conducted multiple charge conferences and prepared several drafts of the written charge. Defense counsel did not request that the judge include additional factual scenarios in the charge. Prior to summations, defense counsel had reviewed the final charge and stated "I have no objection and I don't . . . have anything to add to it." At the conclusion of summations, the court instructed the jury in accordance with the agreed upon charge.
Defense counsel's failure to object to the court's final charge demonstrates that, at the time, counsel "perceived no prejudice in the charge given." State v. Mays, 321 N.J. Super. 619, 630 (App. Div.), certif. denied, 162 N.J. 132 (1999). There was no prejudice by the judge not further elaborating on the facts, but even if there was, such a contention is mitigated by the arguments set forth by defense counsel during his summation. See Robinson, supra, 165 N.J. at 47.
III.
Defendant argues that the judge erred by failing to make sufficient findings as to the aggravating and mitigating factors at sentencing, thus imposing an excessive sentence.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court must consider the relevant aggravating factors and may consider the relevant mitigating factors. See N.J.S.A. 2C:44-1a and -1b. The court must then "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if we would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.
After reviewing defendant's pre-sentence report, prior criminal history, past employment, and substance abuse history, the court found that aggravating factors N.J.S.A. 2C:44-1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), and -1a(9) (need for deterrence) outweighed mitigating factor N.J.S.A. 2C:44-1b(7) (that defendant had led a law-abiding life for a substantial period of time before the commission of the offense).
As to aggravating factor six, the judge acknowledged that defendant did not have any prior indictable convictions, but stated that "he does have a disorderly persons conviction on his record and he also was granted a conditional discharge." The judge applied aggravating factor nine because the "public needs protection from this defendant[,]" and "[t]here's a strong need to deter this particular defendant, as well as others, from violating the law." The judge gave "great weight to aggravating factor nine."
The judge found that mitigating factor seven applied because defendant's prior disorderly persons conviction and a conditional discharge occurred "quite some time ago." However, the judge determined "that the aggravating factor six outweighs mitigating factor seven[,]" after he conducted "a qualitative analysis, a balancing, a weighing of these factors," giving "more weight to aggravating factor six."
The judge declined to apply mitigating factors three, four and five, all of which deal with provocation and self-defense, because these claims were contrary to the verdict convicting defendant of first-degree murder. In addition, the judge did not apply mitigating factors N.J.S.A. 2C:44-1b(8) ("defendant's conduct was the result of circumstances unlikely to recur") and N.J.S.A. 2C:44-1b(9) ("[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense"), concluding that defendant failed to establish support in the record for the application of these factors.
Accordingly, the judge sufficiently explained his findings of aggravating and mitigating factors and his findings are supported by credible evidence in the record. See State v. Case, ___ N.J. ___ (2014) (slip op. at 28). There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that a thirty-seven-year sentence for first-degree murder "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVIDION