Opinion
DOCKET NO. A-3336-12T2
09-08-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEMONT O. LOVE, a/k/a LEMONT LOVE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-04-0574. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Lemont O. Love appeals from his judgment of conviction for drug offenses. He raises issues concerning suppression, trial, and sentencing. We affirm.
I.
As set forth in more detail below, police officers sought to arrest defendant for a robbery-assault. They encountered him with Randy Williams and Charles Opher outside his trailer home, which was occupied by Raymond Nichols and Roy Dey, III. During the arrest, defendant attempted to hide heroin. Officers searched the trailer for his missing girlfriend, and discovered marijuana in the trailer and cocaine under the trailer.
The grand jury charged defendant with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(12).
The indictment also included charges against Williams, Opher, Nichols, and Dey. Those charges were handled separately, as were the charges from the robbery-assault, see State v. Love, Nos. A-5409-10, A-1321-11 (App. Div. July 31, 2014).
The jury convicted defendant of possession of heroin. It acquitted defendant on the cocaine charges. It also acquitted him of possession with intent to distribute marijuana, instead convicting him of the lesser-included disorderly-persons offense of possession of marijuana, N.J.S.A. 2C:35-10(a)(4). On January 14, 2013, the court sentenced defendant for the marijuana offense to time served, and for the heroin offense to five years in prison with two and one-half years of parole ineligibility, to run concurrent to an existing sentence. Defendant appeals.
Defendant's counseled brief raises the following arguments:
POINT I. THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMEDMENT TO THE UNITED STATES CONSTITUTION, AND ART. 1, PAR 10 OF THE NEW JERSEY CONSTITUTION, AND 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, WERE VIOLATED BY ACCUSATIONS FROM ABSENTEE WITNESSES THAT LAMONT LOVE HAD COMMITTED CRIMES.Defendant has also filed a pro se brief adding these arguments:
POINT II. THE PROSECUTOR'S ARGUMENT THAT DEFENDANT IS GUILTY BECAUSE HE FAILED TO QUESTION THE POLICE ACTIONS DIRECTED AGAINST HIM AT OR NEAR THE TIME OF HIS ARREST VIOLATED THE DEFENDANT'S FIFTH AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION (Not Raised Below).
POINT III. THE TRIAL COURT SHOULD HAVE REVIEWED, IN CAMERA , A KEY WITNESS'S PERSONNEL FILE FOR EVIDENCE OF BIAS.
POINT IV. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL WARRANTLESS SEARCHES AND SEIZURES.
A. THE WARRANTLESS SEARCH OF THE DOORMAT AND SEIZURE OF THE CDS CANNOT BE JUSTIFIED AS A SEARCH INCIDENT TO ARREST, AS THE DEFENDANT HAD ALREADY BEEN
APPREHENDED AND IN HANDCUFFS WHEN THE CONTRABAND WAS SEIZED.
B. THE WARRANTLESS SEARCH OF THE HOME CANNOT BE JUSTIFIED AS COMMUNITY CARETAKING AND EMERGENCY AID.
POINT V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENEDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE PROSECUTOR'S ARGUMENT THAT "THE WAR ON DRUGS IS IN THIS COURTROOM" (Not Raised Below).
POINT VI. THE DEFENDANT'S SENTENCE IS EXCESSIVE:
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT ERRONEOUSLY MADE FINDINGS OF FACT THAT ELEVATED THE SENTENCE BEYOND THE MINIMUM THAT COULD HAVE BEEN AND SHOULD HAVE BEEN IMPOSED BASED ON THE JURY'S FINDINGS.
POINT I. TRIAL COURT COMMITTED REVERSIBLE ERROR BY FORCING DEFENDANT TO CHOOSE BETWEEN HIS RIGHT TO TESTIFY AND HIS RIGHT TO HAVE ILLEGALLY OBTAINED EVIDENCE SUPPRESSED, IN VIOLATION OF THE U.S. CONST. AMENDS. IV, V, VI, AND XIV AND N.J. CONST. (1947) ART. 1, PARS. 1, 8, 9 AND 10.
POINT II. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
II.
We first address the counseled brief's challenges to the denial of defendant's motion to suppress. The testimony at the suppression hearing indicated the following.
In the early morning of February 17, 2010, a friend of defendant's girlfriend ("woman") came to the East Brunswick Police Department (EBPD) expressing concern that the woman was missing. The friend reported as follows. Defendant was a Crips gang member, and was known to carry a handgun. During a dispute in Spotswood the previous evening, he had punched the woman in the chest and stomach leaving her severely bruised. After the woman returned from Spotswood, defendant telephoned her threatening that if she did not come back and return his car, he would hurt her. She then left to meet defendant. At 2:15 a.m., she sent the friend a text message: "I'm done. Love you. Bye." An EBPD officer went to the woman's residence and spoke to her mother, who was unaware of the woman's current whereabouts but believed she was staying at defendant's residence in Spotswood.
At about 11:30 a.m. at an East Brunswick motel, there was a robbery and assault in which defendant was a suspect. The robbery victim told the EBPD that defendant was heading with two men to Spotswood in a Pontiac. The EBPD relayed that information, and the fact that defendant might be carrying a handgun, to the Spotswood Police Department (SPD).
SPD Detective Scott Hoover heard this information. He was familiar with defendant and his Pontiac. He proceeded with SPD officers in an unmarked vehicle to defendant's apartment complex to look for the Pontiac, and then to a trailer where the Pontiac had been seen over the weekend. They kept the trailer under surveillance for ten minutes until defendant pulled into the driveway in the Pontiac. Defendant, Williams, and Opher got out of the Pontiac. The officers exited their vehicle with their guns drawn, identified themselves as police, and ordered the three men to "get down on the ground."
Williams and Opher complied immediately. Defendant refused and kept walking to the porch of the ranch-style trailer home. Detective Hoover called defendant by name, repeatedly ordering him to get on the ground. Defendant replied, "How do you know my name?", but still did not comply.
Defendant reached the porch of the trailer, opened the storm door, and knelt behind it. He put his hand in his pocket, took out his hand, bent down behind the door's metal lower half where he could not be seen, and stood up with his hands raised. A back-up officer, Patrolman Nicholas Mayo, forced defendant into a prone position on the porch.
Patrolman Mayo handcuffed and arrested defendant. Detective Hoover joined Patrolman Mayo and defendant on the porch. While defendant was still in the area of the doorway, the detective checked the area. Underneath the doormat, Detective Hoover found four wax baggies of heroin.
Detective Hoover frisked defendant and found a key to the trailer. The detective knocked on the door of the trailer. Nichols answered, but denied knowing defendant.
Detective Hoover drove defendant, Williams, and Opher to SPD headquarters. Meanwhile, the SPD alerted the EBPD that defendant had been apprehended.
EBPD Sergeant Alexander Todoroff drove to SPD headquarters and spoke with Detective Hoover about the need to check defendant's residence in Spotswood for the woman. The sergeant wanted "to check on her safety" to see if she was injured, or held against her will. Sergeant Todoroff, Detective Hoover, and other officers proceeded to the trailer. Detective Hoover conferred with the prosecutor's office, which advised that, based on the information the woman was in danger, the officers could do a limited search for her in the trailer.
The officers knocked on the door of the trailer. Detective Hoover told Nichols they were going to search the trailer for the woman. Sergeant Todoroff, Detective Hoover, and two other officers entered the trailer. Detective Hoover questioned Nichols about the woman, and Nichols said a woman had been there the previous evening. Looking for the woman, Sergeant Todoroff went into the bathroom and found Dey with a hypodermic needle in his hand, and drugs in a spoon. SPD officers arrested him and seized the drugs.
Detective Hoover went to the back bedroom where Dey was handcuffed, and asked him about the woman. While talking to Dey, Detective Hoover saw a large zip-lock bag containing marijuana protruding from a pair of jeans draped over a chair. Based on that observation, and the drugs seized from Dey, Detective Hoover applied for a search warrant. Executing the warrant, officers seized the jeans and found in the pockets the marijuana, $3675, and a wallet containing defendant's driver's license.
Meanwhile, maintenance workers approached the officers and said they had seen someone underneath the raised trailer during the previous night. The workers went under the trailer to look for the woman, and found PVC pipes stuffed with cocaine and drug paraphernalia. The court denied suppression. Because defendant was acquitted of all charges concerning the cocaine, we need not address the propriety of the search under the trailer.
The trial court denied suppression of the heroin and the evidence from the jeans. Defendant appeals. We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Ibid. (quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; quotation marks omitted).
Under the United States and New Jersey Constitutions, "[w]arrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement," such as search incident to arrest, or the community-caretaking doctrine. State v. Pena-Flores, 198 N.J. 6, 18 (2009); see U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The court found the police lawfully seized the heroin in a search incident to arrest, and the evidence from the jeans in a community-caretaking search. We address each in turn.
A.
Detective Hoover testified he searched under the doormat as a search incident to defendant's arrest. It is undisputed that the officers had probable cause to arrest defendant. "Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp." Pena-Flores, supra, 198 N.J. at 19 (quoting Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)). "The purpose of such a search is (1) to protect the arresting officer[s] from any potential danger and (2) to prevent the destruction or concealment of evidence." State v. Dangerfield, 171 N.J. 446, 461 (2002). "[T]he ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons." Pena-Flores, supra, 198 N.J. at 19.
Here, there were strong reasons for the search incident to arrest. The police had probable cause to believe defendant had just been involved in a robbery-assault, and a citizen had reported that defendant carried a handgun. See State v. Miller, 47 N.J. 273, 275-77, 284-85 (1966) (where officers "had reliable information [the arrestee] carried a gun," they could search the area "reasonably accessible to" the handcuffed arrestee). Defendant defied the officers' orders to get down on the ground, went to the storm door, opened it, and crouched down behind it, apparently hiding something on the ground. See State v. Henry, 133 N.J. 104, 108, 119 (1993) (seizure of vials a defendant tried to hide under a mattress during her arrest was "a reasonable search incident to a legal arrest").
"The only limitation upon a search of an arrestee's person and the area within his immediate control is that the search may not be 'remote in time or place from the arrest[.]'" State v. Oyenusi, 387 N.J. Super. 146, 154 (App. Div. 2006) (quoting United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 538, 550-51 (1977)), certif. denied, 189 N.J. 426 (2007). "The requirement of substantial contemporaneity of the arrest and search is ordinarily satisfied if the search . . . is made at the location of the arrest while the arrestee is still on the scene." Id. at 155. Here, the search was made at the location of the arrest while defendant was still there.
Defendant argues it was unreasonable to believe he could gain access to evidence or a weapon, because he was in handcuffs. Handcuffing does not terminate the officers' right to search an arrestee's person incident to arrest. State v. Williams, 192 N.J. 1, 5, 13 (2007); State v. Sessions, 172 N.J. Super. 558, 569 (App. Div. 1980) (upholding search of handcuffed arrestee's sock). Similarly, if bags were in an arrestee's possession prior to arrest, officers may take and search the bags even after the arrestee was handcuffed and "no longer had access to the bags." Oyenusi, supra, 387 N.J. Super. at 157.
In any event, the trial court found that the doormat and whatever defendant had placed underneath it were still within his grasp. This factual finding is supported by the evidence that Patrolman Mayo forced defendant to the ground in front of the door, and that defendant was still standing there when Detective Hoover looked under the doormat.
Defendant cites State v. Eckel, 185 N.J. 523 (2006). There, an arrestee was not only handcuffed, but had been removed from the site of arrest and confined in a police car. In that situation, our Supreme Court refused to apply the "bright-line" rule, allegedly established by New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768, 775 (1981), that arrest of an occupant of a car automatically allowed a search of the passenger compartment of a car. Eckel, supra, 185 N.J. at 525, 540-41. Otherwise, however, our Supreme Court "has applied the same test to determine the validity of searches incident to arrest under the New Jersey Constitution as applies under the Fourth Amendment." Oyenusi, supra, 387 N.J. Super. at 153, 157-59. Applying that test, the heroin was seized in a valid search incident to arrest.
Faced with the same situation, the United States Supreme Court has since "reject[ed] this reading of Belton." Arizona v. Gant, 556 U.S. 332, 335, 343, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
B.
Defendant next argues that the trial court should have suppressed the marijuana, the money, and his driver's license seized from the jeans in the trailer. He does not dispute that the marijuana bag sticking out of the jeans was in plain view when the officers were searching for the missing woman, and that the evidence was not seized until the officers executed the search warrant. Instead, he argues that the police could not enter the trailer to look for the missing woman under the community-caretaking doctrine.
Our Supreme Court has recognized that "police officers acting in a community-caretaking capacity 'provide "a wide range of social services" outside of their traditional law enforcement and criminal investigatory roles.'" State v. Vargas, 213 N.J. 301, 323 (2013) (quoting State v. Edmonds, 211 N.J. 117, 141 (2012) (quoting State v. Bogan, 200 N.J. 61, 73 (2009))). "Police officers serving in a community-caretaking role are empowered to make a warrantless entry into a home under the emergency-aid exception to the warrant requirement." Ibid. "Under the emergency-aid doctrine, a police officer can enter a home without a warrant if he has '"an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury"' and there is a '"reasonable nexus between the emergency and the area or places to be searched."'" Id. at 323-24 (quoting Edmonds, supra, 211 N.J. at 132 (quoting State v. Frankel, 179 N.J. 586, 600 (2004))).
Vargas reaffirmed an earlier decision upholding a search under the community-caretaking doctrine, where the police "'were responding to an alert regarding an endangered missing person.'" Id. at 318 (quoting State v. Diloreto, 180 N.J. 264, 281 (2004)). In Diloreto, the Court stressed that "'the responsibility of police officers to search for missing persons' . . . is part of the core set of [community] caretaker activities." Diloreto, supra, 180 N.J. at 281 (quoting Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261, 302 (1998)).
Here, the police received an in-person report from the friend that the woman was missing after being beaten, severely bruised, and threatened with further harm by defendant, a gang member known to carry a handgun. Moreover, the friend reported that after defendant had compelled the woman to meet with him, she had sent a text that could be read as a final farewell. Police confirmed that her mother had no idea of the woman's current whereabouts. Both the friend and the mother said the woman had previously stayed with defendant in Spotswood.
Moreover, police had probable cause defendant had committed a robbery-assault. They found him in Spotswood with a key to the trailer in his pocket and knew his car had been seen at the trailer over the weekend. All this information gave the police reason to believe defendant could have injured or confined the woman in the trailer.
The police officers thus had "an objectively reasonable basis to believe that there is an emergency," and "'a" reasonable nexus between the emergency and the area or places to be searched."'" Vargas, supra, 213 N.J. at 305, 323-24. The situation here posed a greater emergency than Diloreto, where the officers conducted the search after discovering the missing person. The emergency equaled that in Bogan, where the Court upheld an officers' entry into an apartment to determine "why a child was home alone on a school day in an apartment where a suspected crime had occurred." Bogan, supra, 200 N.J. at 78.
The emergent situation here stands in marked contrast to Vargas, where the apartment occupant's alleged "absence for 'a couple of weeks' was consistent with a person vacationing, traveling on business, or tending to a personal family matter." Vargas, supra, 213 N.J. at 328. It also contrasts with Edmonds, where the alleged victim of domestic violence met the officers outside her apartment, did not exhibit any injuries, denied there was any problem, and showed her son was unharmed. Edmonds, supra, 211 N.J. at 138.
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Defendant argues that "[t]he problem with this [community-caretaking] analysis is that the East Brunswick Police Department was actually conducting a robbery investigation." However, the Supreme Court has refused "'[t]o hold that the police can never legitimately engage in community caretaking activities merely because they are also involved in the detection, investigation, or acquisition of evidence concerning the violation of a criminal statute[.]'" Bogan, supra, 200 N.J. at 77. There is no "'requirement for exclusivity in terms of time or space.'" Ibid. Here, there was no testimony that the officers exceeded their role of looking for the missing woman.
Thus, the trial court properly found that the EBPD and SPD officers had a sound and independent basis for entering the trailer because they were acting in good faith on the missing person information, they were "looking for a human being" in danger, and their search was not pretextual. See ibid. In any event, the Supreme Court "no longer consider[s] the officer's motivation for entry into the home" under the emergency-aid doctrine. State v. Earls, 214 N.J. 564, 593 (2013); Edmonds, supra, 211 N.J. at 131-33. Vargas permits a community-caretaking entry into a home where the emergency-aid doctrine's objective test is met. Vargas, supra, 213 N.J. at 323-24.
Defendant next complains that the actions of the EBPD officers cannot be community caretaking because they were in the different community, Spotswood. He notes Sergeant Todoroff told an SPD detective that EBPD officers were "going to check that residence for this girl, whether he likes it or not." Defendant ignores that SPD Detective Hoover joined the effort to see if the woman was in the trailer, sought and obtained permission from the prosecutor's office, made the entry into the trailer, questioned both Nichols and Dey about the woman, and in doing so saw the marijuana in the jeans. Based on that permissible observation, Detective Hoover properly obtained the warrant and the evidence in the jeans was validly seized.
III.
Defendant challenges comments in the prosecutor's opening and closing. "Prosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009). A prosecutor is "entitled to argue the merits of the State's case 'graphically and forcefully.'" State v. Smith, 212 N.J. 365, 403 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Furthermore, defendant did not object to any of these comments. Thus, "defendant must demonstrate plain error to prevail." 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). "Plain error is 'error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his defense.'" Id. at 576-77. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Id. at 576.
A.
In his opening, the prosecutor made no reference to the report of the missing woman, or the robbery-assault. Instead, he stated: "The Spotswood Police get information. As a result of that information, they stake out the area that [] they know Mr. Lemont Love hangs his hat, so to speak." Defendant did not object, but now claims this violated his right of confrontation.
To the contrary, "a police officer may, without violating either the hearsay rule or defendant's right to confrontation, explain the reasons he apprehended a suspect or went to the scene of the crime by stating that he did so upon information received." State v. Vandeweaghe, 177 N.J. 229, 240-41 (2003) (quotations omitted). "Such testimony is admissible 'to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct.'" Id. at 241 (quoting State v. Bankston, 63 N.J. 263, 268 (1973)). Detective Hoover testified that he went to the scene to look for the Pontiac based on information received. The prosecutor could properly use the same phraseology in his opening.
Similarly, defendant cannot show plain error in the prosecutor's comment that upon defendant's arrival in the Pontiac, "the Spotswood Police come out and they have their guns out. And they order the occupants of the car to get on the ground." The trial court had ruled the State could elicit that the officers had their guns out. The prosecutor's comment only conveyed what Detective Hoover and the other officers did. Defendant argues that the comment related hearsay from "anonymous accusers," but the comment did not relate "secondhand details about the crime or the defendants." State v. Luna, 193 N.J. 202, 217 (2007). Defendant speculates the jury inferred that police had received information he had been involved in a serious crime, but he has failed to show any such prejudice, and the jury's acquittals suggest the contrary.
B.
Defendant next challenges the prosecutor's reference in summation to defendant's "response to the police when they came up; how do you know my name? Not, who are you? Not, what are you doing here? Not, why do you have your guns out? Not, what are you picking on me for? How do you know my name, isn't that interesting?" Defendant contends this implied he knew why the police were there and thus had a guilty state of mind. In fact, the prosecutor was arguing that defendant's response showed "[h]e was surprised on that day. He didn't expect the police to be there."
Defendant also argues that the prosecutor's comment violated his right against self-incrimination. "A suspect who begins to speak to the police while in custody, during interrogation, or 'at or near' the time of his arrest does not waive his right against self-incrimination when he falls silent-- the words he could have spoken cannot be used against him." State v. Muhammad, 182 N.J. 551, 568 (2005). Thus, it was error for the prosecutor to comment on what defendant could have said when the police ordered him to submit immediately before his arrest. See State v. Stas, 212 N.J. 37, 57-58 (2012) (such silence "cannot be used for any purpose at trial").
However, such an error is not necessarily prejudicial. E.g., State v. Elkwisni, 190 N.J. 169, 181 (2007) (finding such error harmless). Here, there is no indication that comment "was a significant factor in defendant's conviction." Cf. Stas, 212 N.J. at 59 (finding plain error where the factfinder expressly relied on defendant's silence). This was not a situation where the State impeached an exculpatory version of events by citing a defendant's failure to tell it to the police. Cf. Muhammad, supra, 182 N.J. at 573-74; State v. Lyle, 73 N.J. 403, 409-10 (1977). Moreover, "[t]he whole incident occupied only a few lines, as far as the jury was concerned, in the transcript of a trial lasting more than three days." State v. Alston, 70 N.J. 95, 98 (1976). It is "'fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.'" State v. Nelson, 17 3 N.J. 417, 471 (2002).
C.
Defendant lastly challenges comments in the prosecutor's summation responding to the defense closing. "[A]n appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel." Smith, supra, 212 N.J. at 404; see United States v. Young, 470 U.S. 1, 12-13, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). "A prosecutor's otherwise prejudicial arguments may be deemed harmless if made in response to defense arguments." State v. McGuire, 419 N.J. Super. 88, 145 (App. Div.), certif. denied, 208 N.J. 335 (2011).
The first comments concern Nichols and Dey, who testified for the State after pleading guilty and getting Pre-Trial Intervention. They admitted that before PTI, they were drug addicts. Within six months after the death of his mother, Nichols had spent his $300,000 inheritance on drugs; Dey had been an addict for twenty-five years. Both testified that defendant supplied them with drugs, and that defendant had stayed in the trailer.
Defense counsel repeatedly emphasized that Nichols and Dey were "two former drug addicts who were drug addicts at the time who got sweetheart deals." Counsel argued they were the drug dealers because they shared drugs at parties, "and now [they are] turning around and [falsely] trying to blame it on [defendant] for [their] sweetheart deal." In response, the prosecutor argued that it was defendant who really ran the trailer and who brought drugs to Nichols and Dey, and then added: "The war on drugs is here. The war on drugs is in this courtroom." Citing defense counsel's claim that Nichols and Dey had gotten sweetheart deals, the prosecutor asked: "Is that what the war on drugs is about? To take those people and throw them in jail or do they deserve to get a chance to try to clean themselves up?" He continued: "A person who needs to be punished on the war on drugs is the drug dealer. People like Mr. Lemont Love."
A "'prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law[.]'" State v. Rose, 112 N.J. 454, 521 (1988) (quoting ABA Standards for Criminal Justice § 3-5.8(d) (2d ed. 1980)). In State v. Holmes, 255 N.J. Super. 248, 249-50 (App. Div. 1992), the prosecutor referred to "the particular drug problem that we have in this country" and "the war on drugs." We found plain error because "the prosecutor's references were only a thinly-veiled attempt to inflame the jurors by identifying defendant with matters of public notoriety as to which no evidence was or could have been ever introduced." Id. at 251. "The prosecutor's statements to the jurors were nothing less than a call to arms which could only have been intended to promote a sense of partisanship incompatible with their duties. It was the jury's function, not to enlist in the war on drugs, but to listen to the evidence and decide in a dispassionate way the question of defendant's guilt." Id. at 251-52; see State v. Skinner, No. A-57/58 (N.J. Aug. 4, 2014) (slip op. at 40-41) ("[A] prosecutor's summation should not employ language designed to stoke a jury's fear for the future of its community or make an inflammatory argument akin to a 'call to arms[.]'").
Here, the prosecutor erred in invoking the "war on drugs," a potentially inflammatory issue broader than defendant's guilt or innocence. However, he did so as part of his response to the defense closing and to justify the prosecutorial decision to divert drug addicts Nichols and Dey to PTI while prosecuting the accused drug dealer. The prosecutor did not emphasize the drug problem, and his "'statements did not urge the jury to send a message.'" Wakefield, supra, 190 N.J. at 461; cf. Rose, supra, 112 N.J. at 520-21 (the prosecution urged the jury to "'send a message'"). Further, "[t]he absence of prejudice is evidenced by the jury's verdicts, which acquitted defendant of [the] two charges of possession with intent to distribute." See State v. Patterson, 435 N.J. Super. 498, 511 (App. Div. 2014).
Defense counsel also argued in closing that Detective Hoover "acted on a stereotype" because defendant is black. Counsel asserted Hoover "came in . . . thinking that Mr. Love was guilty of these offenses, [and so] he told you what he had to tell you." The prosecutor responded to the accusation that "Detective Hoover was a racist" by arguing: "As far as the cops being racist, . . . drugs do not discriminate. Drugs do not know the difference between a black man and a white man. . . . Drugs are an equal opportunity destroyer[.]"
It was not improper for the prosecutor to respond to the defense accusation of racism by arguing that race was irrelevant to the drug charges. The prosecutor's response may have been dramatic, but it was not an attack on defendant. Cf. State v. Long, 119 N.J. 439, 484 (1990) (criticizing the prosecution's reference to a defendant "as an 'equal opportunity' shooter"). In any event, rhetorical excesses "do not always justify reversing a jury's verdict." Smith, supra, 212 N.J. at 409. The prosecutor's response did not unfairly prejudiced defendant. See State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001).
We do not condone the prosecutor's challenged comments in summation. However, the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Timmendequas, supra, 161 N.J. at 576. Further, immediately after the prosecutor's closing, the court told the jury that the comments of the attorneys were not evidence and were not controlling, that speculation played no role in its deliberations, and that it was the jury's "duty to weigh the evidence calmly and without passion, prejudice, or sympathy." "We presume the jury followed the court's instructions." Smith, supra, 212 N.J. at 409. Defendant has failed to show plain error.
IV.
Defendant requested that the trial court review the personnel file of Patrolman Mayo for evidence of bias that could be used to impeach his credibility. However, defendant did not make that request until after Mayo had testified in the suppression hearing, and Mayo did not testify at trial. Moreover, defendant offered no "factual predicate making it reasonably likely that information in the file could affect the officer's credibility." State v. Harris, 316 N.J. Super. 384, 387 (App. Div. 1998). Instead, defendant cited only his own apparently unfounded complaint against Mayo in 2009. See State v. Jones, 308 N.J. Super. 15, 44-45 (App. Div. 1998) (finding the defendant failed to make a sufficient "showing to justify a breach of confidentiality" of such records). Finally, Patrolman Mayo was only a back-up officer with a limited role in the case. Cf. State v. Williams, 403 N.J. Super. 39, 47-48 (App. Div. 2008) (holding the defendant could seek discovery of racial bias within the investigating agency because a superior officer made racial remarks about defendant during a briefing on the case), aff'd as modified, 197 N.J. 538 (2009). Defendant has not shown an abuse of discretion. See State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010).
V.
We turn to defendant's pro se brief. After arresting defendant, SPD officers searched defendant's Pontiac for weapons, and found similarly-packaged heroin inside a black plastic bag in a coffee can. The trial court suppressed the heroin in the car. Defendant challenges the court's ruling that if defendant took the stand and denied knowledge that drugs were present, the heroin in the car could be introduced to impeach his testimony. The court's ruling was correct, as "[i]llegally seized evidence may be used . . . to impeach a defendant." State v. Battle, 256 N.J. Super. 268, 275 (App. Div. 1992) (citing United States v. Havens, 446 U.S. 620, 627, 100 S. Ct. 1912, 1916-17, 64 L. Ed. 2d 559, 566 (1980)).
Defendant also challenges the sufficiency of the evidence. We find the trial evidence was sufficient to show defendant constructively possessed the heroin under the doormat and the marijuana. See State v. Spivey, 179 N.J. 229, 236-37 (2004).
VI.
Defendant challenges his five-year sentence as excessive. The trial court found aggravating factors three, six, nine, and eleven. It found the aggravating factors outweighed mitigating factor eleven. See N.J.S.A. 2C:44-1.
Defendant argues that it was improper to find that "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business[.]" N.J.S.A. 2C:44-1(a)(11). Aggravating factor eleven is inapplicable "'unless the sentencing judge is balancing a noncustodial term as against a state prison sentence. Where . . . defendant is convicted of a crime carrying a presumption of imprisonment, factor (11) is ordinarily inapplicable[.]'" State v. Dalziel, 182 N.J. 494, 503 (2005) (quoting State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003)). However, there was no presumption of imprisonment for the third-degree and disorderly-persons offenses here. See N.J.S.A. 2C:44-1(d), (e); see Cannel, New Jersey Criminal Code Annotated, comment 8 on N.J.S.A. 2C:44-1 (2014). Defendant also notes he was acquitted of possession with intent to distribute, but aggravating factor eleven is not precluded in the situation here.
Defendant next cites Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013), which overruled Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), and held "that any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." However, Alleyne made clear that its ruling "does not mean that any fact that influences judicial discretion must be found by a jury." Id. at ___, 133 S. Ct. at 2163, 186 L. Ed. 2d at 330. "Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized by law." Ibid.
Here, defendant was sentenced to discretionary parole disqualification for two-and-one-half years under N.J.S.A. 2C:43-6(b), which provides that "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, . . . the court may fix a minimum term not to exceed one-half of the [maximum] term[.]" Ibid. (emphasis added). The statute thus "invests the sentencing court with the discretion to impose a parole disqualifier[.]" State v. Abdullah, 184 N.J. 497, 511 (2005). Because this provision is discretionary rather than mandatory, it is not invalidated by Alleyne.
Defendant's remaining sentencing arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Under our "deferential standard" of review, we uphold the sentence. State v. Fuentes, 217 N.J. 57, 70 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION