Opinion
DOCKET NO. A-1782-08T4
11-19-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BOYCE SINGLETON, JR., Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-01-0104.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).
Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, of counsel and on the brief). PER CURIAM
Defendant is presently serving a fifty-year prison term for murdering his pregnant girlfriend. At trial, he did not dispute shooting and stabbing the victim to death; instead he largely defended by claiming insanity. In appealing the judgment of conviction, defendant argued that the trial judge's instructions on his insanity defense were incomplete. By way of a prior opinion, we agreed with that contention and reversed. State v. Singleton, 418 N.J. Super. 177, 180 (App. Div. 2011). The Supreme Court granted certification and reversed. State v. Singleton, 211 N.J. 157, 187 (2012). In addition, the Court remanded the matter to this court for a decision on the other issues defendant raised in his appeal, which we had not previously needed to consider. Id. at 187.
The facts revealed by the evidence adduced at trial have been fully discussed in the Supreme Court's opinion, 211 N.J. at 162-68, as well as our earlier opinion, 418 N.J. Super. at 180-85, and need not be repeated, only briefly summarized. In a nutshell, defendant shot his girlfriend, Michelle Cazan, at her Mansfield apartment, which they had shared for the prior two months, on September 13, 2005. He shot her four times, but she did not immediately die from these wounds. As Michelle was choking on her own blood, defendant stabbed her four times with a butterfly knife; those wounds proved fatal.
Other than the arguments contained in defendant's first point regarding his insanity defense, which have been resolved by way of the Supreme Court's decision, defendant also argues:
II. BECAUSE THERE WAS EVIDENCE THAT MR. SINGLETON DID NOT ACT KNOWINGLY OR PURPOSELY DURING THE OFFENSES, THE ABSENCE OF AN INSTRUCTION ON DIMINISHED CAPACITY REQUIRES REVERSAL OF HIS CONVICTIONS AND A NEW TRIAL (Partially raised below).We reject these arguments and affirm.
III. REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED TO MR. SINGLETON HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10.
IV. THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE DECEDENT DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 10.
V. THE IMPOSITION OF A FIFTY-YEAR TERM FOR MURDER WITH 85% PAROLE INELIGIBILITY, AND A CONSECUTIVE TERM FOR THE RELATED OFFENSE OF HINDERING APPREHENSION, WERE MANIFESTLY EXCESSIVE.
In Point II, defendant claims he was prejudiced by the trial judge's failure to instruct the jury on diminished capacity. Defendant, however, overlooks the fact that the trial judge actually did instruct the jury on diminished capacity principles, and properly so. We, thus, find no merit in defendant's Point II.
In Point III, defendant asserts three instances of prosecutorial misconduct. By the time of the first such instance, the jury had learned that defendant believed Michelle was pregnant at the time of her murder. The judge had properly held that evidence that defendant believed this fact was admissible for the limited purpose of demonstrating a possible motive for the murder. In cross-examining defendant's expert, Dr. Maureen Santina, the prosecutor explored her statement that Michelle's pregnancy was a stressor that "ratcheted up the pressure" on defendant. The prosecutor asked whether the expert thought "things ratcheted up to the point where it provided [defendant] with a motive to kill [Michelle]," and the expert replied that she thought not because defendant had "talked about wanting to take care of his child." In response -- more rhetoric than question -- the prosecutor said: "He did that [i.e., "take care" of the unborn child] that night, didn't he?" When Dr. Santina responded with "Pardon me?", the prosecutor repeated: "He did that that night, didn't he?"
The extent of the evidence regarding pregnancy was described by the trial judge in her jury charge: "Evidence has been introduced that a positive home pregnancy test was found in Ms. Cazan's car. In addition, during the trial, you heard testimony from several of the witnesses indicating that Michelle Cazan may have been pregnant. Such evidence was admitted for a specific, limited purpose. Whether or not Ms. Cazan was actually pregnant is not evidence before you."
Defense counsel immediately objected and, at sidebar, moved for a mistrial. There, the trial judge characterized the prosecutor's question or comment as "outrageous," and the prosecutor conceded it "came out stronger" than intended. The judge, however, denied the application for a mistrial, choosing instead to forcefully instruct the jury in the following manner:
I instruct you that [the prosecutor's] remark or question, however you choose to view it, was improper. He knew it was improper. It was disrespectful to you the jury, to the witness, to the defendant, to counsel, to the [c]ourt and insulting. And the [p]rosecutor knew it. He knew it was improper.In reprising his argument that the prosecutor's comment was unduly prejudicial, defendant argues to us that "the damage had irrevocably been done when the prosecutor intentionally suggested to the jury that [defendant] had committed not one, but two, murders."
My instruction to you is to disregard it. And as I told you before when I struck something from the record, when I tell you to disregard something it means that you can't use it in any way, shape or form in your discussions about this case or your deliberations about this case. And you can't think about it and you can't talk about it.
This case is about the murder of Michelle Cazan. It is not about the murder of anyone else and that is the simple issue that is here.
Defendant urges two other statements by the prosecutor that he believes represent prosecutorial misconduct warranting a new trial. He argues that the prosecutor engaged in misconduct during his summation by impugning Dr. Santina's integrity because she had not included in her report certain statements made by defendant. And he amplified that theme by reference to the O.J. Simpson murder trial, with the following comment in his summation: "In the OJ trial, it was, if the glove doesn't fit, you must acquit. Well, in Santina's case, if it doesn't fit my defense you must ignore. It's not as catchy, but it applies here." Viewed separately or collectively, defendant contends that the prosecutor's statements both during the cross-examination of Dr. Santina and in discussing her opinions during summation were so egregious as to warrant a new trial.
Prosecutors have a duty to refrain from employing "improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935). Consequently, prosecutors must "refrain from any conduct lacking in the essentials of fair play, and where . . . conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)); see also State v. Jackson, 211 N.J. 394, 409 (2012). "[T]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of [her] defense." Wakefield, supra, 190 N.J. at 438 (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
Although the prosecutor's comment during his cross-examination of Dr. Santina was out of bounds, we reject defendant's contention that only a mistrial could adequately address this departure from proper advocacy. A mistrial is an extraordinary remedy to be used only to prevent a manifest injustice, State v. Winter, 96 N.J. 640, 647-48 (1984), and the decision to grant or deny a motion for a mistrial is within the trial judge's discretion, which we will not disturb absent an abuse of that discretion, State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). The harm caused here, of course, did not result from the prosecutor's reference to Michelle's pregnancy; the jury had heard evidence regarding defendant's understanding that Michelle was pregnant. But there was no evidence demonstrating she was pregnant. The harm was that the prosecutor was attempting to convey to the jury, through his sarcastic comment, that Michelle actually was pregnant and, moreover, that defendant had not just shot and killed Michelle but that he had also killed the unborn fetus -- matters not properly before the jury.
To be sure, the prosecutor's rhetorical question fell outside the bounds of proper advocacy. The remedy for such a circumstance, however, rested in the trial judge's discretion. The judge determined, based on her feel of the case, that a mistrial was not warranted; she instead gave a strongly-worded direction to the jurors that the comment should be ignored by them because it was improper and the prosecutor "knew it" was improper. We are satisfied, after closely examining the record, that the trial judge's choice of a remedy for this regrettable event was appropriate and that her ruling by no means constituted an abuse of discretion. See Jackson, supra, 211 N.J. at 409, 413; State v. Smith, 167 N.J. 158, 182 (2001).
We also conclude that defendant was not unduly prejudiced by the prosecutor's statements during his summation regarding the scope of Dr. Santina's examination of the facts and her opinions. 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). Indeed, prosecutors "are expected to make vigorous and forceful closing arguments to juries." Ibid.
The comments made by the prosecutor cited by defendant in support of Point III were largely focused on what the prosecutor was entitled to argue: that the defense expert had not given sufficient -- or any -- weight to evidence that, in the prosecutor's view, did not support the insanity defense. To that extent, we find the prosecutor's utterance of those comments did not unduly prejudice defendant but instead represented fair comment on the evidence. Indeed, defense counsel did not object or seek a disapproving instruction.
We do agree that the prosecutor's reference to the Simpson murder trial was unnecessary and improper. Defense counsel, however, did not object to those comments. As a result, the standard of review, imposed by Rule 2:10-2, requires that we determine whether the prosecutor's improper reference to the Simpson trial was "clearly capable of producing an unjust result." State v. Reeds, 197 N.J. 280, 298 (2009). We cannot reach that conclusion. Indeed, it is well-established that an inference may be drawn by a reviewing court that, in the absence of an objection or request for a cautionary instruction, the improper comment "was actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971). Accordingly, we reject defendant's Point III.
We find insufficient merit in Point IV -- in which defendant claims that certain admitted crime scene photographs were so gruesome as to deprive defendant of a fair trial -- to warrant discussion in a written opinion. R. 2:11-3(e)(2). We would briefly observe, however, that although there was no question that defendant shot and killed Michelle, defendant's state of mind at the time was very much in dispute. The judge therefore determined, in the exercise of her discretion and conscientious judgment, that the photographs could amplify the jury's understanding of what occurred and could give rise to a legitimate inference that defendant acted with purpose when he killed Michelle. We have been presented with no principled reason for second-guessing the judge's discretionary ruling in this regard.
We lastly find insufficient merit in defendant's Point V 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