Opinion
DOCKET NO. A-1981-12T1
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE D. SHOWELL, a/k/a ANDRE SHARWELL, a/k/a AUTOMATIC, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Parrillo, Harris and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-00594. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant was found guilty of fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(12) (count one); third-degree possession of marijuana with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, (count two); second-degree possession of marijuana within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1, (count three); second-degree eluding, N.J.S.A. 2C:29-2b, (count four); and second-degree aggravated assault, N.J.S.A. 2C:12-1b(6), (count seven).
The trial judge sentenced defendant as follows: count four merged with count seven, and defendant was sentenced on count seven to a five-year term of imprisonment, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; count one merged with count two, and defendant was sentenced on count two to a term of five-years' imprisonment, with a three-year period of parole ineligibility pursuant to the mandatory extended term provisions of N.J.S.A. 2C:44-3, to run concurrent with count seven; and as to count three, a term of five-years' imprisonment concurrent with count two.
Defendant raises the following arguments on appeal:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S RELIANCE ON DRUG OFFENSES NOT THE SUBJECT OF A CRIMINAL CONVICTION TO IMPEACH THE DEFENDANT'S CREDIBILITY. (Not Raised Below).We have considered these arguments in light of the record and applicable law, and we affirm.
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY, SUPPORTED BY THE TRIAL COURT'S INSTRUCTION, THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE MARIJUANA BASED ON "SHARING." (Not Raised Below).
A. THE PROSECUTOR ERRONEOUSLY INFORMED JURORS THAT SHARING IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.
B. THE TRIAL COURT'S INSTRUCTION THAT DISTRIBUTE MEANS THE "TRANSFER" OF CDS WAS MISLEADING AND INACCURATELY REINFORCED THE PROSECUTOR'S ERRONEOUS INTERPRETATION OF THE LAW.
III. THE PROSECUTOR IMPUGNED THE DEFENDANT'S CHARACTER AND DELIBERATELY GAVE THE JURORS A FALSE IMPRESSION OF THE EVIDENCE BY INFORMING THE JURORS THAT THE DEFENDANT OPERATED A DRUG "BUSINESS." (Not Raised Below).
IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE PROSECUTOR NULLIFIED THE JURY'S RIGHT OF NULLIFICATION. (Not Raised Below).
V. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS ON ALL THE ESSENTIAL ELEMENTS OF THE OFFENSE OF POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE. (Not Raised Below).
VI. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE THAT THE DEFENDANT WAS SITUATED IN A HIGH CRIME AREA TO PROVE THAT HE WAS INVOLVED IN THE DRUG TRADE.
(Not Raised Below).
I.
We discern the facts from the trial record. On January 15, 2009, at approximately 6:00 p.m., Detective Christopher Bornheimer and Sergeant John Quick of the New Brunswick Police Department were conducting general surveillance in an unmarked vehicle on Joyce Kilmer Avenue. The officers were dressed in plain clothes, but wore badges around their necks. The area of their surveillance is a "high-crime area" and the officers have made hundreds of arrests for drug deals in the nearby park, executed search warrants within a two or three block radius of their location, and maintain ongoing surveillance in the area.
Bornheimer and Quick testified that the Ford Explorer they were driving was equipped with loud sirens, as well as flashing headlights and taillights, lights in the grill, a "light bar" near the dashboard, and additional strobe lights in the headlights.
Bornheimer and Quick observed a silver Jetta stop in front of a home on Joyce Kilmer Avenue and watched as the driver got out, entered a house, and then re-emerged and drove off "at a high rate of speed." Quick identified the driver as defendant and both officers knew he had a suspended driver's license. They followed defendant, and activated their lights and sirens. Defendant did not pull over, but instead accelerated, making a right turn onto another street and driving through a stop sign.
Defendant struck another vehicle, and then backed his car into Bornheimer's Explorer, coming to a stop thereafter. Bornheimer and Quick thereupon approached defendant's car, and yelled "police open the door." Defendant did not open the door, so Bornheimer opened the driver's side door while Quick opened the passenger side door. As soon as Bornheimer opened the door, defendant began "violently" swinging his arms, striking Bornheimer in the face. Eventually, the officers arrested defendant.
Defendant was searched at the police station and police recovered seventeen individual Ziploc "baggies" of marijuana and several empty "baggies," inside of a larger Ziploc bag, weighing a total of fifteen grams.
Defendant testified at trial and admitted possessing marijuana, but denied intending to distribute it and claimed it was for personal use. Defendant also denied eluding the police, explaining that he did not notice a police car behind him because he was rushing to pick up his wife from work and he was driving with his windows up. He testified that once he saw a police car drive towards him, he attempted to get out of the way, "veer[ing] off a little bit" and striking the third-party's car. Finally, defendant denied hitting Bornheimer.
Defendant also admitted that he was driving with a suspended license at the time of the incident.
II.
Defendant argues for the first time on appeal that the State made improper comments during both opening and closing statements, depriving defendant of a fair trial. Defendant also argues that the trial judge improperly defined distribution of marijuana, and that he was unduly prejudiced by the admission of evidence that the incident occurred in a high-crime area.
Defense counsel did not object to any of the challenged remarks. Because the alleged errors were not brought to the trial judge's attention, "the scope of review on appeal is narrow." State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006) ("Generally, issues not raised below, even constitutional issues, will not ordinarily be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest."). If an error was not brought to the trial court's attention, we will not reverse on that ground, unless the appellant shows that the error was "clearly capable of producing an unjust result." R. 2:10-2. However, the mere possibility of an unjust result will not suffice. In a jury trial, the possibility must be "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).
We address first defendant's claims of prosecutorial misconduct. Prosecutorial misconduct, including improper remarks in summation, can be a ground for reversal only if the misconduct "was so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996). To justify a reversal on appeal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v. Roach, 146 N.J. 208, 219 cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)); See also State v. Smith, 212 N.J. 365, 403-04 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed 2d 558 (2013).
First, defendant argues that he was denied his constitutional right to present a defense based on the State's improper use of disorderly persons offenses to impeach his credibility.
At trial, defendant took the stand and testified that he smoked marijuana daily. He explained that depending on how much money he has, he buys marijuana "[e]very other day, every four days, [or] every three days." Defendant further acknowledged it was against the law to buy and smoke marijuana.
Defendant testified that he smoked about "a quarter" of marijuana every day, which he explained costs about thirty-five to forty-five dollars "wholesale," and that a quarter was approximately how much marijuana he possessed on the day he was arrested.
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During summation, the prosecutor stated:
And you can take into consideration the fact that this gentleman has two prior convictions, one of which in '99 landed him in jail for ten years, four years before which he was even eligible for parole. You could take that into consideration as a motivation maybe to not be totally upfront with you when he took the stand. You could take that into consideration.Defendant alleges that the prosecutor's statement improperly expanded the scope of the witness impeachment rules under N.J.R.E. 609, because possession of marijuana is not a crime - it is a disorderly persons offense — and because the State failed to produce a judgment of conviction regarding defendant's daily use of marijuana.
And he continues to do it. He's - - he's doing - - he tells you every day break the law. . . .
Defendant himself testified that he smoked marijuana every day. As a result, there was adequate support in the record for the prosecutor's assertions about defendant's use of marijuana. See State v. Rodriguez, 365 N.J. Super. 38, 48-49 (App. Div. 2003), certif. denied 180 N.J. 150 (2004). A judgment of conviction was not necessary to prove that defendant was convicted of an offense. Here, defendant's admission of marijuana possession and use was simply a fact in evidence, which the State properly commented upon.
Defendant also alleges that the prosecutor inappropriately impugned his character, giving the jurors a false impression of the evidence, by stating that defendant was in the business of selling drugs. During his opening statement, the prosecutor addressed the jury as follows:
I want to take you back to January 15th, 2009, a day like any other for most of us; it's a Thursday, figure around six o'clock. A lot of you guys are coming home from work. You may be stopping off to pick up something to eat, maybe picking up kids from daycare, any number of things that you're trying to get done that day[.] . . .
You were going about your business at about six o'clock in the evening. . . .
. . . [Defendant] was also going about his business that night. . . . [T]his gentleman's in the business of selling drugs. And that's what he was doing that night.
Unfortunately for him, while he's going about his business of selling drugs, there were police officers on the street and they were doing their job.
Defendant now claims this statement was prejudicial, and unsupported by the evidence presented at trial. A prosecutor cannot make a direct comment regarding facts not in evidence, nor draw unreasonable inferences from the evidence. State v. Bradshaw, 195 N.J. 493, 510 (2008); State v. Mahoney, 188 N.J. 359, 376 (2006); Frost, supra, 158 N.J. at 85. However, in the present matter, there was sufficient evidence at trial that supported the prosecutor's comment. Moreover, a defendant's failure to object to the prosecutor's remark may be deemed indicative of a lack of prejudice. Smith, supra, 212 N.J. at 407; State v. Echols, 199 N.J. 344, 361 (2009).
Finally, defendant argues that the prosecutor "nullified the jury's right of nullification" by telling jurors that they must uphold the law regardless of their personal beliefs regarding marijuana. The prosecutor made the following comment during his opening statement:
You may or may not believe [marijuana] should be legalized. We didn't get into those questions during voir dire. ItDefendant argues the State falsely informed the jurors that they could not nullify this particular law even if they found it harsh, unjust, or did not otherwise approve.
doesn't matter what your personal beliefs are, because you made a promise, you made an oath, and you swore you'd uphold the law as it's given to you by the Judge. And marijuana with possession to distribute is a crime, regardless of your thoughts and opinions about marijuana. And you have to stick to the law and what it is, so it's not about that.
Here, the prosecutor's statement did not constitute error, much less plain error. It is well-settled that a jury does not have the "right" to nullification; rather, nullification is a "power" the jury possesses, which is undesirable. See State v. Ragland, 105 N.J. 185, 205 (1986) (explaining that "judicial attempts to strengthen the power of nullification are not only contrary to settled practice in this state, but unwise both as a matter of governmental policy and as a matter of sound administration of criminal justice").
Next, defendant argues that the trial judge improperly defined distribution as the "transfer" of marijuana. Defendant also alleges that the judge "injected" attempt into the case but did not define what constitutes attempt.
In his charge to the jury, the trial judge defined what the term "distribute" meant with respect to defendant's charge of intent to distribute. The judge instructed the jury as follows:
[D]istribute means the transfer, actual, constructive, or attempted from one person to another, of a controlle[d] dangerous substance.
It's not necessary that the drugs be transferred in exchange for payment or promise of money or anything of value. Intent means a purpose to do something, a resolution to do a particular act or accomplish a certain thing. Intent is a state of mind. It's very rare that intent is proven by witnesses who could testify that an accused said he had a certain intent when he engaged in a particular act. The intention may be gathered from a person's act, conduct, from all he said, all he did at the particular time and place, from all the surrounding circumstances.
This claim was not raised before the trial court and thus must be analyzed under the plain error standard. R. 2:10-2; see State v. Torres, 183 N.J. 554, 564 (2005) ("Our rules provide that a defendant waives the right to contest an instruction on appeal if he does not object to the instruction.") (citing R. 1:7-2) .
In the context of a jury charge, plain error is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Torres, supra, 183 N.J. at 564 (citing State v. Jordan, 147 N.J. 409, 422 (1997)). "In reviewing instructions to the jury, the court must not isolate the language challenged but must examine the remark in the context of the entire charge." State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "A jury charge must adequately set forth the elements of an offense in a way that explains the law to the jury in an understandable manner." Ibid. "The test, therefore, is whether the charge in its entirety was ambiguous or misleading." State v. Hipplewith, 33 N.J. 300, 317 (1960).
Here, the trial judge's charge is a verbatim recitation of the Model Jury Charge and consistent with N.J.S.A. 2C:35-5(a)(1). See Model Jury Charge (Criminal), Possession of a Controlled Dangerous Substance with Intent to Distribute (N.J.S.A. 2C:35-5) (Rev. 1/14/08). Moreover, defendant was not charged with "attempting to possess marijuana with intent to distribute," and the Model Charge for possession with intent to distribute, does not include a definition of "attempt." Furthermore, defendant never requested the court to clearly define attempt, and the parties agreed to the instruction at the charge conference. As such, the trial judge did not commit error in his charge to the jury.
The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION