Opinion
DOCKET NO. A-0572-11T1
04-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON S. JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-11-1874 and 09-12-2151.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief). PER CURIAM
Following a jury trial, defendant Jason S. Jones was convicted of fourth-degree obstructing the administration of the law, N.J.S.A. 2C:29-1(b). The judge sentenced defendant to a term of 365 days, to run concurrently with another sentence resulting from a separate indictment.
Although defendant appealed listing both indictments, defendant's brief only addresses indictment 08-11-1874. Hence, any issue regarding the other indictment is deemed waived. See Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).
Before us, defendant raises the following arguments:
POINT I: PROSECUTORIAL MISCONDUCT DURING OPENING STATEMENTS DEPRIVED MR. JONES OF HIS RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
POINT II: THE ADMISSION INTO EVIDENCE, IN THE ABSENCE OF A LIMITING INSTRUCTION, OF THE GUILTY PLEA OF ALLEGED CO-CONSPIRATOR AND ACCOMPLICE EARL MASON DEPRIVED MR. JONES OF DUE PROCESS OF LAW, THE RIGHT TO CONFRONTATION, AND A FAIR TRIAL. (Not Raised Below).
We have considered these arguments in light of the record and relevant legal standards. We affirm.
The record reveals the following facts. On July 22, 2008, New Brunswick Police Officers Virginia Lopez and Michael Coppola responded to a report of a residential robbery in an apartment on Easton Avenue. The suspects had fled by car, and soon after the officers spotted an automobile in the vicinity matching the vehicle's description. When the officers pulled over the vehicle, the rear passenger jumped out and fled on foot. Officer Coppola chased this individual, later identified as Earl Mason, and apprehended him.
Meanwhile, Officer Lopez walked toward the front passenger side of the car to investigate. The individual in the front passenger seat made eye contact with her, pushed her to the ground, and then also fled on foot. Lopez observed a wallet on the car floor with a driver's license inside bearing the name of defendant, and recognized the picture on the license as the individual who had just pushed her and fled. The driver, later identified as Jordan Levine, remained in the car. A search of the trunk revealed items reportedly taken in the robbery and a handgun. Defendant was apprehended several months later.
On November 18, 2008, a grand jury charged defendant with second-degree conspiracy, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree burglary, N.J.S.A. 2C:18-2; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and fourth-degree obstructing the administration of the law, N.J.S.A. 2C:29-1(b).
Mason and Levine were also indicted based on the above incident. Subsequently, they each entered into plea agreements that required them to testify truthfully at defendant's trial.
In October 2009, defendant's jury trial began. During her opening statement, the prosecutor told the jury that Levine and Mason entered guilty pleas, admitted they were involved in the robbery, and were going to "testify truthfully about what happened." She stated that the three victims who were in the apartment and Mason would describe defendant's involvement with the robbery, and Mason would place defendant in the apartment. Defendant did not object.
Levine testified and stated that defendant, Mason, and he were at the Easton Avenue apartment on the evening of July 22, 2008, that Mason and defendant put the stolen items in the trunk of his car, and that defendant was in the car when stopped by the police. He also acknowledged his plea agreement and his expectation of favorable treatment.
In contrast, in the middle of the trial, Mason unexpectedly refused to testify as agreed, and stated, outside the presence of the jury, that he wanted to take back his plea. The judge held him in contempt, but the State did not call him as a witness. Defendant testified that he was not with Mason and Levine that day and did not rob the apartment or flee from the police.
During discussion of possible jury charges, the judge suggested that he give a charge addressing Mason's absence, but neither party accepted the offer.
On October 26, 2009, the jury found defendant guilty of fourth-degree obstructing the administration of the law, N.J.S.A. 2C:29-1(b). However, it was unable to reach a verdict on all other charges. On January 7, 2011, the judge sentenced defendant to a term of 365 days incarceration. This appeal followed.
In 2010, defendant pled guilty to charges from a separate indictment, and, as part of the plea agreement, the remaining six charges in this case were dismissed.
Defendant first argues that the prosecutor's inaccurate reference in her opening statement that co-defendant Mason had pled guilty and would testify to defendant's involvement in the robbery constituted prosecutorial misconduct, which prejudiced the jury and deprived him of his right to a fair trial. We disagree.
To determine whether a prosecutor's conduct warrants reversal, we must assess whether it "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Since defendant failed to object to this comment at trial, we review the record for plain error. R. 2:10-2.
In evaluating claims of prosecutorial misconduct and plain error the fundamental question [this court] must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty
verdict if the questioned conduct had not occurred. If the possibility of an unjust result is sufficient to raise in our minds a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached, a new trial is required.
[State v. Walden, 370 N.J. Super. 549, 562 (App. Div.) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)), certif. denied, 182 N.J. 148 (2004).]
We recognize that "'prosecutors, as lawyers, are engaged in an oratorical profession[,]'" and are afforded "'latitude for forceful and graphic advocacy.'" State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Reddish, 181 N.J. 553, 640-41 (2004)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Nonetheless, "'prosecutors should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" Reddish, supra, 181 N.J. at 640-41 (quoting State v. Smith, 167 N.J. 158, 177 (2001)).
"'A prosecutor's opening statement should provide an outline or roadmap of the State's case,'" and "'be limited to a general recital of what the State expects, in good faith, to prove by competent evidence.'" Walden, supra, 370 N.J. Super. at 558 (quoting State v. Torres, 328 N.J. Super. 77, 95 (App. Div. 2000)). The failure to object to a prosecutor's remarks "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made," and "deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citing State v. Irving, 114 N.J. 427, 444 (1989)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Here, the prosecutor's remarks were not so egregious as to deprive defendant of a fair trial. The record does not support a finding that the remarks created prejudice, and there is no indication that they were made in bad faith. The principal purpose of the remarks was to provide a good faith outline of the proofs the State planned to present to the jury. See Walden, supra, 370 N.J. Super. at 558. The references to Mason were limited and fleeting, stating that he agreed to testify truthfully as part of a plea agreement and that he would place defendant at the robbery scene. Moreover, the jurors were appropriately instructed that the attorneys' statements were not evidence. See Timmendequas, supra, 161 N.J. at 578. Considering that defendant did not object to the remarks and did not request a limiting instruction, we discern no plain error as the prosecutor's remarks were not clearly capable of producing an unjust result. See R. 2:10-2; Timmendequas, supra, 161 N.J. at 576-77.
Furthermore, the jury rendered a guilty verdict only on defendant's charge of fourth-degree obstruction of the administration of the law, which stemmed from defendant pushing Lopez to the ground and then fleeing. Contrary to defendant's claim, the prosecutor made no specific reference in her opening about Mason testifying concerning the obstruction charge. Hence, the possibility that the remarks representing that he would testify about the robbery had any bearing on defendant's obstruction conviction is extremely remote.
Indeed, Mason could not have testified to the specifics of this event because by that time, he had already fled the scene.
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Defendant's reliance on this court's holding in Walden, supra, 370 N.J. Super. at 558, is unavailing as that case is readily distinguished. In Walden, the prosecutor went into explicit detail about the testimony the co-defendant was expected to provide and touted his testimony as crucial and critical to the State's case. Id. at 555. Indeed, the co-defendant's proffered testimony was the most direct connection of the defendant to the crime, since the remaining evidence was either hearsay or circumstantial. Id. at 559.
In contrast, here both Lopez and Levine witnessed defendant's shoving Lopez and his subsequent flight, and Levine testified that defendant was with him and Mason the night of the robbery incident. Additionally, there were three other witnesses to the robbery. Hence, Mason's testimony was neither crucial or critical, particularly to the obstruction charge. Also, the prosecutor's general recital of what Mason and the victims were going to testify about was not a vividly detailed preview of the testimony. See Torres, supra, 328 N.J. Super. at 95.
The general and brief description of Mason's expected testimony here also stands in stark contrast to the prosecutor's opening statement in State v. Land, ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 36-37), where we found extreme prejudice to defendant when the prosecutor provided extensive, unnecessarily detailed, and eventually unproven factual allegations of the non-testifying star witness in a case where the rest of the evidence was weak. We are convinced that the remarks here were not so egregious that the trial was unfair or that it caused the jury to have otherwise rendered an unjust result. See R. 2:10-2; Timmendequas, supra, 161 N.J. at 576-77.
Defendant next argues that the trial court improperly admitted evidence of Mason's guilty plea as proof of defendant's guilt by failing to give a limiting instruction after the prosecutor mentioned the plea in her opening statement. We disagree.
Generally, "a co-defendant's guilty plea . . . may not be used as substantive evidence of the defendant's guilt." State v. Adams, 194 N.J. 186, 208 (2008) (citing State v. Stefanelli, 78 N.J. 418, 430-33 (1979)). However, "the comments of an attorney in an opening statement do not constitute evidence." Walden, supra, 370 N.J. Super. at 556. Furthermore, a trial court's jury instructions as to what does and does not constitute evidence may mitigate any potential error. Timmendequas, supra, 161 N.J. at 578. "We presume that the jury follow[s] the court's specific admonitions regarding the role of opening statements." Ibid. (citing State v. Feaster, 156 N.J. 1, 65 (1998)).
A review of the record fails to support defendant's contention that Mason's guilty plea was admitted as substantive evidence to prove defendant's guilt. A reference to Mason's plea was only made in the prosecutor's opening statement and was never revisited again after Mason declined to testify. The judge gave a clear instruction to the jury that opening statements and summations of counsel were not evidence, and there is nothing in the record to suggest that the jury did not heed those instructions. See Timmendequas, supra, 161 N.J. at 578.
Moreover, the trial judge appropriately instructed the jurors concerning Levine's testimony, explaining that evidence of his guilty plea could only be used to determine his credibility. See Adams, supra, 194 N.J. at 208. The instructions emphasized that the jurors were not to use Levine's guilty plea "as evidence that [defendant was] guilty of the crime or crimes that he [was] being charged with." We would expect that the jury was able to understand that this instruction would also apply to any guilty plea, including Mason's. Thus, we are satisfied that the prosecutor's passing reference to Mason's guilty plea in her opening argument was not capable of producing an unjust result and did not constitute plain error. See ibid.; R. 2:10-2.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION