Opinion
DOCKET NO. A-2758-13T4
12-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT J. PRITCHETT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-05-01438. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Robert J. Pritchett was charged in Camden County Indictment No. 12-05-01438 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35- 5a(1) and b(2) (count two); third-degree possession of cocaine within 1000 feet of a school with the intent to distribute, N.J.S.A. 2C:35-7 (count three); second-degree possession of a firearm during the commission of a drug offense, N.J.S.A. 2C:39-4.1a (count four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count five); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7b (count six). Following a jury trial on counts one through five, defendant was acquitted of counts two, three, and four, but was found guilty of counts one and five. In a second trial, the same jury convicted defendant of count six.
The charge of possession of a weapon by a prohibited person must be tried separately because proof that the defendant is a convicted felon "clearly tends to prejudice the jury." State v. Ragland, 105 N.J. 189, 193 (1986). --------
On the conviction for third-degree possession of cocaine, the court sentenced defendant to a four-year term of imprisonment, with two years of parole ineligibility. Defendant was sentenced to a concurrent one-year term on the resisting arrest conviction. The court imposed a consecutive eight-year term with five years of parole ineligibility for the certain persons not to have weapons offense. This resulted in an aggregate sentence of twelve years, with seven years of parole ineligibility. On appeal, defendant presents the following arguments for our consideration:
POINT IHaving thoroughly reviewed the trial record, we find no merit in any of these contentions, and affirm.
THE ASSISTANT PROSECUTOR'S SUMMATION WENT FAR OUTSIDE THE BOUNDS OF PROPRIETY WHEN HE TOLD THE JURY THAT "WHAT WE'RE HERE FOR" IS TO FOCUS ON THE "CANCER" OF "GUNS AND DRUGS" THAT IS "TEARING APART THE SOCIAL FABRIC OF OUR COUNTRY" AND TURNING CAMDEN INTO "ONE OF THE FIVE MOST DEADLY CITIES IN AMERICA." (Not Raised Below).
POINT II
THE JURY INSTRUCTION ON THE CERTAIN-PERSONS COUNT INCORRECTLY TOLD THE JURORS THAT THEY COULD BE NON-UNANIMOUS ON WHICH FIREARM DEFENDANT POSSESSED. (Not Raised Below).
POINT III
IN A CERTAIN-PERSONS CASE WHERE THE DEFENSE IS NOT CONTESTING THE EXISTENCE OF THE PRIOR CONVICTION, OR THE FACT THAT IT SATISFIES THE ELEMENT OF THE CRIME, AND WHERE ALLOWING THE JURY TO HEAR THE NATURE OF THAT PRIOR CONVICTION WILL SUBSTANTIALLY PREJUDICE THE DEFENDANT, THE OFFER MUST BE MADE BY THE TRIAL JUDGE TO DEFENSE COUNSEL TO STIPULATE TO THE EXISTENCE OF THAT CONVICTION UNDER STATE V. ALVAREZ, THEREBY AVOIDING TELLING THE JURY THE NATURE OF THE CONVICTION. (Not Raised Below).
POINT IV
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
I.
These are the most pertinent facts drawn from the trial testimony. On February 15, 2012, Sergeant Christopher Frucci of the Camden County Police Department was conducting routine surveillance in a "known high-crime, high violent area" of Camden. Upon arriving in that area he exited his vehicle and observed two individuals standing in the entrance to the Chestnut Court Apartments. As he approached them, Frucci observed defendant take two small plastic bags out of his front pocket and hand them to a female, who in turn handed defendant paper currency. Defendant put the money in his pocket, and the female left the scene.
Frucci testified that, based on his training and experience, he had just observed a drug transaction. Frucci radioed his partner and other back-up officers in the area, announcing his intent to arrest the individuals involved. As Frucci drew closer, defendant became alerted to his presence and fled on foot. Frucci chased after defendant, telling him, "Stop. You're under arrest." Defendant continued to run, entered an apartment within the complex, and locked the door. While outside the apartment, Frucci heard the toilet flushing inside. Believing that defendant was attempting to destroy drug evidence, Frucci told him, "Police. Stop. You're under arrest." Frucci began to force the door down when a Ms. Brown, who resided in the apartment, opened it and let him in. Frucci immediately observed defendant coming from the bathroom area, and placed him under arrest.
Brown told Frucci that she knew defendant as "P.I." and that she let him sleep on her couch and store his things in her apartment in exchange for money. Brown also allowed defendant to use the kitchen. Brown identified several large black trash bags near the couch that contained defendant's belongings. On top of one of the trash bags was a small leather bag with the top open. Frucci looked inside the bag and observed a black revolver. Brown then signed a consent to search her apartment at Frucci's request.
Frucci limited the search to those areas that Brown stated defendant had access to. The revolver and ammunition were retrieved from the small leather bag by the couch. In the kitchen, police recovered a semi-automatic handgun, ammunition, drugs, packaging material, and a digital scale. The police also seized $4118 in cash. Brown denied ownership of the guns and drugs. Ballistics testing on the revolver and the semi-automatic gun established that they were both operable.
A Ms. Ross, the manager of the Chestnut Court Apartments, testified as a defense witness. Ross had gone to school with defendant's mother and knew defendant all his life. She testified that on February 15, 2012, defendant was not a tenant on the lease for the apartment where the drugs and weapons were found. Rather, Brown lived there with her son. Ross had viewed the video surveillance footage and observed defendant standing in the middle of Chestnut Court but "couldn't see what he was doing." She then saw that defendant "came running back and ran into the [] building," followed by the police.
Defendant's mother testified that defendant lived with her at a different address. On cross-examination she conceded that she did not keep track of his daily activities and could not recall if defendant was at her home on February 15, 2012.
The jury convicted defendant of possessing cocaine and resisting arrest. During defendant's second trial, which immediately followed the first, the State, without objection, moved into evidence a certified copy of defendant's 2007 judgment of conviction for possession of a controlled dangerous substance with the intent to distribute within 1000 feet of a school zone. Defendant did not testify. Following summations, the jury found defendant guilty of the certain persons offense. This appeal followed.
II.
For the first time on appeal, defendant argues that the prosecutor committed improprieties in his summation that warrant reversal. Defendant objects to the prosecutor's comments that referred to guns and drugs as "a cancer that's tearing people apart [and] tearing apart the social fabric of our country" and to Camden as "one of the five most deadly cities in America." Specifically, defendant objects to the following portion of the prosecutor's summation:
Ladies and gentlemen, guns and drugs. That's what we're here for. Two items that are tearing apart the social fabric of our country. Very few people that came up here as jurors had no personal and family interaction with the effects of drugs.
It's a cancer that's tearing people apart. We've seen what it does to people, how it destroys young people, destroys families, ruins lives. People wind up dead or in jail. And that's why we're here. And that's why this case is important.
We begin by noting that, because defense counsel did not object to these comments at trial, we apply the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Defendant's failure to timely object to any of the prosecution's remarks during summation "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." 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). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid.
To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed.2d 1160 (1958)). Moreover, "[p]rosecutors are afforded considerable leeway in closing arguments" and may respond to arguments raised by defense counsel, "as long as their comments are reasonably related to the scope of the evidence presented." Frost, supra, 158 N.J. at 82.
The prosecutor's remarks about the social devastation of drug trafficking were unfortunate. However, a prosecutor's comments during summation should not be reviewed in a vacuum, rather, they must be considered "in the context of the trial as a whole[.]" State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). Here, the prosecutor's comments were but an isolated segment of his closing statement that, when viewed as a whole, fairly addressed the testimony and evidence and the reasonable inferences that could be drawn therefrom. We conclude that they did not amount to plain error clearly capable of producing an unjust result. Our view that the jury was not improperly swayed by the prosecutor's remarks is further reinforced by its decision to acquit defendant of the drug and weapon offenses in counts two, three, and four.
Also for the first time on appeal, defendant challenges the jury instructions and verdict sheet that authorized the jury to find defendant guilty of the certain persons offense if it determined that he possessed either of the two handguns found in the apartment. Defendant argues that this conviction should be reversed because the court's instructions on this count violated his right to a unanimous verdict and to due process under the Sixth Amendment, the Fourteenth Amendment and the corresponding provisions of the state constitution. We disagree.
Because defendant did not object to the instruction at trial, we review it for plain error. R. 2:10-2; see also State v. Singleton, 211 N.J. 157, 182 (2012). In the context of jury instructions, this means the alleged error must so substantially affect the rights of the defendant as to "'convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Camacho, 218 N.J. 533, 554 (2014) (quoting State v. Adams, 194 N.J. 186, 207 (2008)). A "[d]efendant is required to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.
"The notion of unanimity requires 'jurors to be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). "Although the need for juror unanimity is obvious, exactly how it plays out in individual cases is more complicated." Ibid. "In some circumstances, [] a general charge on jury unanimity will not suffice." State v. Parker, 124 N.J. 628, 635 (1991).
That is so when, for example, "a single crime can be proven by different theories based on different acts and at least two of these theories rely on different evidence, and [when] the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory."
[Ibid. (quoting People v. Melendez, 224 Cal. App. 3d 1420, 1433-34, 274 Cal. Rptr. 599, 608 (1990)) (alterations in original).]
"Although [a specific unanimity charge] should be granted on request, in the absence of a specific request, the failure to charge does not necessarily constitute reversible error." Id. at 637. "[A]bsent a specific request, 'a general instruction on the requirement of unanimity suffices to instruct the jury they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict.'" Id. at 638 (quoting United States v. Natelli, 527 F.2d 311, 325 (2nd Cir. 1975) cert. denied, 425 U.S. 934, 96 S. Ct. 1663, 48 L.Ed. 2d 175 (1976)). "Generally stated, where there is an allegation on appeal that a specific unanimity charge should have been given, '[t]he core question is, in light of the allegations made and the statute charged, whether the instructions as a whole [posed] a genuine risk that the jury [would be] confused.'" State v. Gandhi, 201 N.J. 161, 193 (2010) (quoting Parker, supra, 124 N.J. at 638) (alterations in original).
Here, the State's allegations with respect to the certain persons charge were neither "contradictory" nor "conceptually distinct." See Parker, supra, 124 N.J. at 639. The State advanced only the single theory that defendant, a convicted felon, constructively possessed both weapons in Brown's apartment. "Furthermore, the jury never exhibited any signs of confusion." Ibid. On these facts, absent a specific request, the omission of a unanimity charge with respect to defendant's possession of each of the two handguns did not constitute plain error.
Next, we reject as without merit defendant's contention that the trial court should have sua sponte inquired whether defendant wished to stipulate to the prior conviction element of the certain persons offense. In advancing this argument, defendant relies on State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999), where we held that a defendant's offer to stipulate that his or her prior convictions meet the status element of N.J.S.A. 2C:39-7 must be granted. See also State v. Harvey, 318 N.J. Super. 167, 173 (App. Div. 1999).
Here, defendant never agreed to stipulate that he had a prior conviction that qualified as a predicate offense under N.J.S.A. 2C:39-7b. Nor do we do read Alvarez as engrafting on a trial court the obligation to suggest that a defendant enter into such a stipulation. Because defendant did not stipulate, it was proper for the State to introduce evidence to establish the prior-conviction element of the certain persons charge.
As his final point, defendant contends that his twelve-year sentence with a seven-year parole disqualifier is excessive. This argument requires 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."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").
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
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 also found mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), based on defendant's history of helping family members and the willingness of his relatives and friends to support him, which buttressed his claim that he would maintain a positive attitude going forward.
The court appropriately pointed out several important considerations bearing on its sentencing analysis. First, the court noted that defendant had ten prior adult convictions, all but one involving drug or weapons offenses. The court further noted that defendant "has been sentenced to state prison and has reoffended shortly after his release" and that he "has not been deterred over his long criminal history." The court assigned "heavy weight" to the three aggravating factors, while according mitigating factor nine only "moderate weight." Balancing these factors, the judge concluded that "the aggravating factors clearly, convincingly[,] and substantially outweigh the mitigating factors," and that a parole ineligibility period was warranted.
The judge also separately explained his reasons for imposing consecutive sentences. He found that the crimes and their objectives were predominantly independent of each other, and that the convictions for which the sentences were to be imposed were numerous. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The judge properly concluded that these Yarbough factors supported consecutive sentences. See State v. Carey, 168 N.J. 413, 427-28 (2001).
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