Opinion
DOCKET NO. A-0106-14T4
12-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEMYOE MORGAN, a/k/a KEMYOE A. MORGAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-05-00786. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Kemyoe Morgan was acquitted of first-degree armed robbery, N.J.S.A. 2C:15-1, but convicted of the lesser-included offense of simple assault by negligently causing bodily injury to another with a deadly weapon, N.J.S.A. 2C:12-1a(2) (Count One). The jury also acquitted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), but again convicted him of the lesser-included offense of simple assault by purposely attempting to cause bodily injury to another, N.J.S.A. 2C:12-1a(1) (Count Two). Defendant was also convicted of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Three), but acquitted of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four).
Defendant was sentenced on April 3, 2014, to an eighteen-month prison term with nine months of parole ineligibility on Count Three. The judge merged counts One and Two, and imposed a six-month custodial term, consecutive to the sentence imposed on Count Three and to sentences defendant was already serving on two unrelated indictments. The judge also imposed appropriate fines, penalties, fees, and assessments, and ordered defendant to pay restitution in the amount of $451.06. The present appeal followed.
On appeal, defendant raises the following issues for our consideration:
POINT ONE
THE TESTIMONY OF DR. DEFREESE AND MICHAEL LINKIN EXCEEDED THE SCOPE OF PROPER LAY OPINION. (Not Raised Below).
POINT TWO
THE PROSECUTOR'S RELIANCE ON DEFENDANT'S PRE-ARREST SILENCE VIOLATED HIS RIGHT AGAINST SELF-INCRIMINATION. (Not Raised Below).
POINT THREE
THE CONFUSING JURY INSTRUCTIONS AND VERDICT SHEET LED THE JURY TO AN UNJUST VERDICT. (Not Raised Below).
POINT FOUR
THE PROSECUTOR MADE IMPROPER COMMENTS IN HIS SUMMATION.
POINT FIVE
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
We have considered these arguments in light of the record and applicable legal principles. We reject each of the points raised and affirm.
I.
We recount the most pertinent portions of the evidence adduced at the January 2014 trial. The State alleged that the victim, Michael Linkin, was assaulted and robbed while attempting to purchase drugs from defendant, his admitted supplier. Defendant denied robbing Linkin, and asserted that he only acted in self-defense in attempting to free himself from an assault by Linkin.
Linkin testified that he was a daily user of heroin, which he purchased from defendant. Linkin had been arrested twice on drug-related charges, and was then in the Pre-Trial Intervention (PTI) Program. Occasionally, when Linkin did not have enough money for the drugs, defendant would extend him credit.
On the evening of March 1, 2012, Linkin traveled to defendant's apartment in South River to purchase heroin. At that point, Linkin already owed defendant approximately $100, which he had failed to pay defendant for a previous purchase. Linkin discussed the proposed drug deal with defendant by telephone before leaving for defendant's apartment. He testified:
I told [defendant] I wanted to purchase heroin from him, and for the money that I owed him, I would leave him a laptop [computer as] collateral, in which case the next day I would return, pay the rest of what I owed him and get my laptop back . . . and he said "No problem."
According to Linkin, when he arrived at defendant's apartment, defendant took his laptop, put it inside, and locked the door while the two men remained outside. They then walked around the corner, where defendant pulled out a knife. Defendant proceeded to take $50 from Linkin, told Linkin to leave, and said he intended to keep the laptop and not return it because he "felt disrespected by [Linkin] not returning sooner" with the money Linkin owed him.
Linkin protested, and after the two men walked back toward defendant's apartment, Linkin "went to do a little swim move around [defendant], which is when he stabbed me" with the knife. Linkin stated that he "was stabbed, almost killed." When asked where he was stabbed, he responded: "Under my left armpit. Cut my branch auxiliary artery and punctured my left lung."
Linkin's father drove him to Robert Wood Johnson Hospital (RWJH) in New Brunswick, where he underwent surgery and remained until March 6, 2012. After he was discharged, photographs of Linkin's wounds were taken at the South River Police Department and later displayed to the jury. When asked to describe the injuries depicted in one of the photos, Linkin began to respond, "Because my lung was deflating --." Defense counsel immediately objected to Linkin offering any medical opinions, and the trial judge cautioned Linkin to "[j]ust tell us what it is." On cross-examination, defense counsel asked Linkin whether he would have been released from the hospital sooner had he not been undergoing withdrawal from his heroin usage. That question elicited the following response:
That's not, the reason that I stayed there longer was because my, I guess the morning of March 2nd, they said if it wasn't for the withdrawal, I would have been released that night, but I would have had to have gone back the next day anyway because my lung was deflated, in which case I got a chest tube put in, which is why I had to stay there as long as I did. I got released a day after they took the chest tube out.
Dr. Marissa DeFreese is a critical care trauma surgeon who treated Linkin at RWJH. At trial, Dr. DeFreese reviewed the hospital's records concerning Linkin's admission and described her diagnosis and treatment of his injuries. She noted that diagnostic tests performed on Linkin did not reveal any injuries to his chest cavity or abdomen. Dr. DeFreese performed surgery to stop Linkin's bleeding, during which she was "able to see that he had damage to the muscle associated with the chest wall as well as a disruption of one of the arteries coming from his chest wall." She noted that the muscle associated with the chest wall "helps you in terms of breathing." She further explained that arteries carry blood away from the heart, and that injuries to an artery "are not self-healing wounds. They need to be repaired in some way."
Defendant testified and admitted he had a criminal history that included convictions for a second-degree crime and four third-degree crimes. He stated he first met Linkin about a month before the incident and began selling him drugs about a week later, often on credit when Linkin lacked enough money to pay for the drugs in full. As of March 1, 2012, defendant estimated that Linkin owed him "[a]round $150 [] to $200" on account of past transactions.
Defendant testified that Linkin called him on March 1, 2012, asking to "come by and purchase" drugs. He claimed Linkin did not discuss the issue of credit or the laptop in this conversation. Linkin arrived at defendant's apartment about fifteen or twenty minutes later, took out his laptop, and laid it on the steps leading up to the apartment. Linkin appeared "really high" or "dope sick," which defendant explained "is when he's having withdrawals from heroin."
Outside on the porch, Linkin handed defendant $50 and asked defendant to supply him with fifty bags of heroin worth $250. Linkin also proposed that defendant hold the laptop as collateral until he paid defendant the balance of what he owed. Defendant declined, but Linkin "would not [] take no for an answer." Linkin then grabbed defendant's neck with one hand and his pocket with the other. When Linkin would not stop choking him, defendant grabbed a paint shaver that was lying nearby and "poked [Linkin with it] at least three or four times" until eventually "[Linkin] let go [of] my neck." Defendant denied taking Linkin's laptop, and had no recollection of what happened to it.
Defendant testified that it was Linkin who tried to reach in defendant's pockets and rob him. On cross-examination by the prosecutor, the following exchange took place:
Q. So let's break this down for the jury. So it sounds like you were the victim of a robbery that night?
A. I was, attempted.
Q. And did you call the police to tell them — -Defendant also admitted he kept the $50 that Linkin gave him and did not give Linkin any heroin in exchange.
A. No.
Q. — - that you were the victim of robbery?
A. No.
II.
For the first time on appeal, defendant argues that, without being qualified as an expert witness, Dr. DeFreese provided medical testimony that exceeded the scope of proper lay opinion. The State concedes that while it would have been preferable for Dr. DeFreese to have been qualified as an expert, any error in the admission of her testimony was harmless.
As defense counsel did not object when Dr. DeFreese's testimony was presented, we review defendant's argument pursuant to the plain error standard. R. 2:10-2. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result[,]" that is, if it was "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. Taffaro, 195 N.J. 442, 454 (2008) (internal quotation marks omitted). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds, State v. Boretsky, 186 N.J. 271, 284 (2006). A defendant's failure to object leads to the reasonable inference that the issue was not significant in the context of the trial. State v. Macon, 57 N.J. 325, 333 (1971).
N.J.R.E. 701 states, "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." "Lay opinion testimony, therefore, when offered either in civil litigation or in criminal prosecutions, can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its function." State v. McLean, 205 N.J. 438, 456 (2011).
In contrast, an expert witness may testify in the form of an opinion provided that it "will assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. "[T]o be admissible, expert testimony should relate[] to a relevant subject that is beyond the ordinary experience, education, and knowledge." State v. Sowell, 213 N.J. 89, 99 (2013) (internal quotation marks omitted). Further, expert testimony may "'embrace[] an ultimate issue to be decided by the trier of fact[.]'" Id. at 100 (quoting N.J.R.E. 704).
Here, Dr. DeFreese testified based on her own personal observation about the nature and extent of Linkin's injuries and the measures taken to diagnose and treat them. Arguably, portions of Dr. DeFreese's testimony exceeded the bounds established for lay witnesses under N.J.R.E. 701, and instead fell within the scope of the expert opinion rule because it was "specialized knowledge" based on her "experience, training, [and] education." N.J.R.E. 702. Nonetheless, for a confluence of reasons, we find any error in the admission of the challenged testimony harmless. R. 2:10-2.
First, Dr. DeFreese clearly possessed sufficient education, training, and experience to qualify as an expert witness in critical care trauma surgery. Where a witness possesses sufficient qualifications to have testified as an expert, any error in allowing the lay opinion may be deemed harmless. State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995).
Second, as the State points out, the purpose of the challenged testimony was to establish that defendant caused or attempted to cause serious bodily injury to Linkin. The jury rejected this and found that defendant only intended to cause bodily injury. Even accepting defendant's version of events, he admitted poking Linkin several times with a paint scraper rather than a knife, thereby injuring him. Accordingly, we discern no plain error in the introduction of Dr. DeFreese's testimony.
We likewise find no merit to defendant's related contention that Linkin gave medical opinions about his injuries that he was not qualified to offer. On direct examination, defense counsel immediately objected to Linkin's testimony that he had suffered a collapsed lung, and the judge promptly cautioned Linkin about giving such medical testimony. Later, on cross-examination, defense counsel proceeded to adduce additional medical information from Linkin concerning his deflated lung and the installation of a chest tube. However, defendant cannot complain about the introduction of this testimony because he invited the error. See State v. Harper, 128 N.J. Super. 270, 277 (App. Div.) ("Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."), certif. denied, 65 N.J. 574 (1974). Moreover, the admission of any medical opinions by Linkin was harmless because, as we have concluded, Dr. DeFreese was properly qualified to and did describe the nature and extent of Linkin's injuries.
III.
On cross-examination, the prosecutor asked defendant whether he called the police to report that Linkin tried to rob him. Defendant now argues that the prosecutor's reliance on his pre-arrest silence violated his right against self-incrimination. Because defendant failed to object to this questioning at trial, we again view this contention through the prism of the plain error standard.
As a general matter, the privilege against self-incrimination embedded in the Fifth Amendment of the United States Constitution has been construed to preclude the State's admission of a defendant's post-arrest silence following the administration of Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976). Our State's case law extends that protection even further to certain evidentiary uses of a defendant's pre-arrest silence. A suspect has "the right to remain silent when in police custody or under interrogation." State v. Muhammad, 182 N.J. 551, 571 (2005) (quoting State v. Brown, 118 N.J. 595, 610 (1990)). Thus, under New Jersey law, a defendant's "silence 'at or near' the time of his arrest may not be introduced to impeach his credibility." Muhammad, supra, 182 N.J. at 571 (quoting Brown, supra, 118 N.J. at 610); see also State v. Deatore, 70 N.J. 100, 108-09 (1976).
The limitation on the use of a defendant's pre-arrest silence is not, however, absolute. Our Supreme Court has held that "once a defendant chooses to take the stand in his or her own defense[,] pre-arrest silence has a bearing on the credibility of the defendant." State v. Pepshi, 162 N.J. 490, 493 (1999) (citing Brown, supra, 118 N.J. at 610). The Court reasoned that "there is no legal constraint one way or the other — either to speak or not to speak — prior to an arrest. Consequently, evidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination." Brown, supra, 118 N.J. at 613 (emphasis added). "Under New Jersey law, a defendant's pre-arrest silence can be used for impeachment purposes (1) 'if that silence significantly preceded his arrest and did not arise in a custodial or interrogation setting,' and (2) if a jury could infer that a reasonable person in the defendant's position would have come forward and spoken." Taffaro, supra, 195 N.J. at 455 (quoting Muhammad, supra, 182 N.J. at 571-72) (internal citations omitted).
In the present case, defendant was not arrested until some two weeks after the incident. Thus, his silence significantly preceded his arrest. Moreover, the record establishes that defendant's wife and young child were present in the apartment when the incident occurred. A jury could have reasonably inferred that defendant would have called the police out of concern for his family, if not himself.
Defendant does raise, albeit for the first time on appeal, a viable argument that, even if the admission of the questioning about his silence was proper, the trial court neglected to instruct the jury regarding the proper use of defendant's silence. However, defendant never requested such an instruction, the prosecutor did not comment on defendant's silence in his summation, and, as noted, ultimately defendant was convicted only of the charges commensurate with the acts to which he admitted. For these reasons, we find no plain error on this point "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" Taffaro, supra, 195 N.J. at 454.
IV.
The arguments newly raised in Points Three and Four of defendant's brief similarly fail to satisfy the plain error standard and lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). In Point Three, defendant contends that the jury charge and verdict sheet were confusing, and that he was deprived of a fair trial because the jury was allowed to consider negligent simple assault as a lesser-included offense of robbery, and purposeful simple assault as a lesser-included offense of aggravated assault. However, defendant did not object to the jury being instructed on these lesser-included offenses, nor does he argue on appeal that they are not valid lesser-included offenses of the indicted charges.
While a bit unclear, the gravamen of defendant's argument appears to be that he could not at the same time have acted both purposely and negligently, and hence the instructions and verdict sheet allowed the jury to render verdicts that were illogical. However, as defendant acknowledges, consistency of verdicts is not required. "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." State v. Banko, 182 N.J. 44, 53 (2004) (quoting Dunn v. U.S., 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932)). There is no obligation for the reviewing court to "reconcile the counts on which the jury returned a verdict of guilty and not guilty." Muhammad, supra, 182 N.J. at 578. Courts are not allowed "to conjecture regarding the nature of the deliberations in the jury room." Ibid. Therefore, any inconsistency in the verdicts does not warrant reversal of the simple assault convictions. Moreover, contrary to defendant's argument, he was not punished twice for the same offense, as the court merged the two convictions at sentencing, thus ensuring that defendant was only punished for one simple assault.
In Point Four, defendant argues that the prosecutor made improper comments in his summation. Specifically, defendant contends that the prosecutor wrongly argued that Dr. DeFreese testified that, but for the medical treatment he received, Linkin would have died from his injuries.
It is well-settled that a prosecutor may only make remarks constituting legitimate inferences from record facts. State v. Perry, 65 N.J. 45, 48 (1974). On the other hand, he or she may not go beyond the evidence presented to the jury. State v. Farrell, 61 N.J. 99, 103 (1972). If a prosecutor is found to have committed misconduct, an appellate court should "evaluat[e] the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial" to decide whether a new trial is warranted. State v. Wakefield, 190 N.J. 397, 437 (2007) (internal quotation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). A reviewing court will reverse a conviction and order a new trial only upon finding the prosecutor's failure to confine his or her summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Here, we note that defendant did not object to the now complained-of remarks made by the prosecutor in summation. See State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001) (noting that "[g]enerally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial"). More importantly, Dr. DeFreese described how the muscle associated with the chest wall to which Linkin sustained damage "helps you in terms of breathing." She further explained that Linkin's arteries, which were also damaged, carry blood away from the heart, and that they would not "self-heal" but rather required repair. Linkin himself testified he "was stabbed, almost killed." Thus we conclude that the challenged remarks, while technically inaccurate, conformed to the evidence presented; were not clearly and unmistakably improper; and did not substantially prejudice defendant's fundamental right to have a jury fairly evaluate the merits of his defense. Ibid.
V.
As his final point, defendant argues that his aggregate two-year prison sentence with nine months of parole ineligibility is excessive. He further contends that the trial court erred in failing to apply mitigating factors three, that he acted under strong provocation, N.J.S.A. 2C:44-1b(3), and four, that there were substantial grounds to excuse or justify his conduct, though failing to establish a defense. N.J.S.A. 2C:44-1b(4). Finally, he argues that the court failed to explain its reasons for imposing consecutive sentences. These arguments require little discussion.
As the Supreme Court has recently reaffirmed, sentencing determinations are reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided that the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record").
In sentencing defendant, the court found significant the following aggravating factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior criminal record and the severity of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6); and (3) the need for deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. Notably, the sentencing transcript fails to establish that defendant argued the applicability of mitigating factors three or four.
The court appropriately pointed out several important considerations bearing on its sentencing analysis. First, the court noted that defendant had both a juvenile and criminal history. The court further noted that defendant had failed to respond affirmatively to a prior probationary sentence and consequently "went to prison for four years" as a result.
Further, as the State pointed out at sentencing, because defendant committed these crimes while out on bail for a previous offense, the court was obliged to impose a consecutive sentence unless doing so "would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-5(h). Based on defendant's criminal history and his admitted drug-dealing, we find no serious injustice here. In sum, the sentence imposed was manifestly appropriate and by no means shocks our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)