Opinion
DOCKET NO. A-1104-13T2
01-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTWAIN SEASE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-07-1889. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A Camden County Grand Jury returned an indictment charging defendant Antwain Sease with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Count One); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Three); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Four).
Following trial, the jury found defendant guilty on all counts. Defendant was thereafter sentenced on Count Three to a six-year term in state prison subject to three-years of parole ineligibility. He was also sentenced on Count Four to a flat six-year term to run concurrently with the sentence imposed on Count Three. Defendant then filed this appeal. The State did not file a cross-appeal. Defendant raises the following issues on appeal:
Counts One and Two were merged with Count Three for purposes of sentencing.
POINT ONE
IMPROPER COMMENTS MADE BY THE PROSECUTOR IN HER OPENING AND CLOSING STATEMENTS EXCEEDED THE BOUNDS OF PROPRIETY AND DEPRIVED SEASE OF A FAIR TRIAL.
A. The Prosecutor Engaged In Improper Name-Calling And Improperly Identified Sease With The Social Problem Of Bullying "That We Seem To Hear A Lot About These Days."
B. The Prosecutor Improperly Encouraged The Jury To Draw The Missing-Witness Inference.
C. In Her Summation, The Prosecutor Misrepresented Testimony, And Improperly
Made Reference To Out-Of-Court Statements That Had Not Been Introduced Into Evidence.
We affirm. We discern the following facts from the record. On February 28, 2012, K.K. and his roommate, arrived at the Ivy Hill apartment complex in Camden. During a verbal altercation with K.K., defendant threatened to shoot and kill K.K., and called him derogatory names such as "faggot" and "homo," prompting K.K. to respond, "I will fight you." Defendant then ran to an apartment a few doors down, and returned with a gun which he pointed at K.K. Either before or immediately after defendant retrieved the gun, defendant said something along the lines of "I don't fight no fagots [sic], I shoot them."
During this altercation, a crowd gathered. The crowd included defendant's mother, aunt, uncle, two cousins, two sisters, and others. A female from the crowd then took the gun from defendant and returned either to the apartment from which defendant originally obtained the gun or an adjacent apartment. A physical altercation between defendant and K.K. ensued for somewhere between thirty seconds and four minutes where K.K. "had control of the fight." The police responded within minutes of the fight and took defendant into custody. Later that night, the police conducted a search pursuant to consent, but were unable to recover the gun.
Defendant testified on his own behalf. He disputed the narrative that he threatened to kill K.K. and obtained a gun from a nearby apartment, which he pointed at K.K. Further, he denied possessing a firearm on February 28, 2012. Defendant claimed he entered his sister's apartment prior to engaging in any argument, and only came outside after he heard his mother arguing with K.K.'s sister. The issues raised by defendant on appeal pertain exclusively to the prosecutor's statements during opening and closing arguments. Those comments, in pertinent part, are as follows:
A topic that we seem to hear a lot about these days is bullying. It's not confined to children; it's not confined to high schools or colleges, bullies come in all ages; all shapes; all sizes.She also ended her summation with the following comment:
And on February 28, 2012, the victim in this matter, [K.K.] was unlucky enough to cross paths with the most dangerous type of bully, a bully with an audience to perform for; a bully armed with a gun, this defendant, Antwain Sease.
. . . .
the defendant shows up, and he does what bullies do . . . . he starts trying to provoke a fight.
[(emphasis added).]
The defendant tries to provoke a fight. It doesn't work. He goes back to his house. He walks back to his house. He comes out
blading his body, and he swaggers down the street. He's not running to defend his mother. He's swaggering because, "Now, I got a gun to back up my bullying." That's what his body language shows you. I ask you to consider all of the evidence, and return a verdict of guilty on all counts.
[(emphasis added).]
In summation, defense counsel implied wrongdoing by the State during its investigations when he rhetorically asked, do "[t]he police go to interview any of these other witnesses about an alleged gun?" Defense counsel was referring to defendant's relatives and friends who witnessed the incident, but were not called by either party to testify. The prosecutor responded in his summation by emphasizing the following:
The police can't force anyone to talk to them. If they don't want to come in, they don't have to.
Who didn't go that night? Defendant's mother. She was still at the scene. Defendant's aunt. She was still at the scene. Defendant's cousins. Defendant's second sister. Defendant's friend that he walked up with.
Also during summation, the prosecutor made reference to statements that were not in evidence. First, she stated, "I asked [defendant's sister], 'How long between your first and your second statement?' And, she said, 'Fifteen to 20 minutes.' And, Detective Beltran said the same thing." Notably, the portion of Beltran's testimony discussing the time between her first and second statements was given outside the presence of the jury during a Gross hearing, and therefore was not in evidence.
State v. Gross, 121 N.J. 1 (1990). --------
Next, defendant raises issue with the prosecutor's reference during summation to a defendant's sister's first statement which was never admitted into evidence. However, during cross-examination by defense counsel, the witness did testify that following her first statement, she was placed in a holding cell for twenty minutes. She also testified that while in the holding cell, she decided to tell the police her brother did have a gun. The officer also testified before the jury that defendant's sister was in a holding cell between the first and second statement, and that he did not remove her from the cell prior to the second statement.
Specifically, the prosecutor argued:
The first statement, you may wonder in the jury room, well, why is it that one statement is in and the other one isn't.
If somebody says that what they said on tape is true, you don't get to see that. But, you did hear all about it and the State doesn't deny she made that statement, and neither did Officer Beltran.
. . . .
And, the first thing, when she was asked, this is the most telling thing, "Did your brother have a gun?" Her first answer is not, "No. No way. Absolutely not." Her first answer is, "I'm not sure." "I'm not sure." Because she hasn't had time to think of the story.
. . . .
[S]he then says, "Was I told my brother had a gun? Yeah."
Now, she's waffling. She's trying to be — she's trying to not get herself into any trouble. And, she's trying to keep her brother out of trouble.
So, her first answer is, "I'm not sure," because she hasn't had a chance to think of something.
And then, "Well, was I told?" Because now she knows that the police have talked to other people who said there's a gun. And then, she gets mad in her first statement.
Mad because they have her, his sister in there, and she says, "There are plenty of other people out in the street, and I'm not going to talk to you because there were lots of witnesses. And, basically, you're putting me in a bad position by forcing me to talk about my brother."
She's mad. I can't say I blame her. It doesn't mean she was telling the truth, right?
[(emphasis added).]
It is noteworthy defense counsel initially elicited testimony from defendant's sister during her cross-examination regarding the first statement. He pursued the following line of questioning:
DEFENSE COUNSEL: Now the officer asked you, did your brother have a gun, and you said I'm not sure first?
[DEFENDANT'S SISTER]: Yes.
. . . .
DEFENSE COUNSEL: Then the officer asked you again, does your brother have a gun; is that right?
[DEFENDANT'S SISTER]: Right.
DEFENSE COUNSEL: And your answer was, was I told my brother had a gun? That was a question. Yes I was told, but like I said, I wasn't out there for the whole situation; is that correct?
[DEFENDANT'S SISTER]: Correct.
Initially, we note defendant did not raise any of the issues that are currently on appeal at the trial level. Therefore, our review is governed by the plain error standard. R. 2:10-2. "Plain error is that which is 'clearly capable of producing an unjust result.'" State v. Singleton, 211 N.J. 157, 182 (2012) (quoting R. 2:10-2). More specifically, "'[t]he error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached.'" State v. Weston, 222 N.J. 277, 294 (2015) (quoting Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 2:10-2). See also State v. Macon, 57 N.J. 325, 336 (1971) (holding same). A defendant bears the burden to demonstrate plain error. Weston, supra, 222 N.J. at 295. To determine whether a defendant satisfies his or her burden, we consider "the overall strength of the State's case." Ibid. (quoting State v. Nero, 195 N.J. 397, 407 (2008)).
Not every error by a prosecutor will constitute plain error. State v. Bucanis, 26 N.J. 45, 56 (1956), cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). Prosecutors are permitted "wide latitude" when making opening and closing arguments, "but are confined to the facts in evidence and the reasonable inferences . . . drawn therefrom." State v. Perry, 65 N.J. 45, 47-48 (1975). Although name-calling during opening and closing argument should not be condoned, "it is unrealistic to expect that in the context of heated criminal trials it will not occasionally occur." State v. Wilson, 57 N.J. 39, 50 (1970).
When reviewing a claim that the prosecutor's remarks were improper, we must consider "whether the misconduct was so egregious that it deprived defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 467 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). We must also consider the responsiveness of the court and counsel at the occurrence of the misconduct, including: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999).
Notably, "a failure to object, as here, indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial." Wilson, supra, 57 N.J. at 51. The failure of trial counsel to object to the prosecutor's remarks is an "ordinarily controlling consideration[]." Id. at 50. See also Frost, supra, 158 N.J. at 83-84 (holding that generally "remarks will not be deemed prejudicial" if no objection was made at trial). Moreover, failure to object will "deprive[] the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84.
As to the "bullying" remarks by the prosecutor, defendant relies on State v. Pennington, 119 N.J. 547 (1990), overruled in part on other grounds by State v. Brunson, 132 N.J. 377 (1993) and State v. Williams, 113 N.J. 393 (1988), for the proposition that prosecutors may not use derogatory epithets to categorize a defendant. However, in Pennington, the Supreme Court explicitly made its ruling on other grounds, stating "we need not determine the likelihood that the prosecutor's misconduct led to an unjust verdict." Pennington, supra, 119 N.J. at 565. Similarly, the Supreme Court in Williams did not make a determination on whether the prosecutor's behavior resulted in an unjust verdict because the reversal included "both the guilt and penalty phases on other grounds[.]" Williams, supra, 113 N.J. at 446.
The facts in this case are also distinguishable from the facts presented in State v. Von Atzinger, 81 N.J. Super. 509, 516 (App. Div. 1963), overruled on other grounds by State v. Smith 131 N.J. Super. 354 (App. Div. 1974). In Von Atzinger, the prosecutor told the jury they were "dealing with a bum, hood, and punk." Von Atzinger, supra, 81 N.J. Super. at 516. We found such comments to be plain error because they invited the jury "to consider [the defendant's] past criminal record as evidence of his criminal character." Ibid.
Here, the prosecutor did not refer to defendant as a "bully" in order to allude to a criminal past. In fact, the jury could infer defendant had no criminal convictions given that he testified at trial and was not impeached with any prior convictions. Instead, it appears the prosecutor was attempting to paint a picture of defendant as a bully based on his specific conduct in this case. The jury heard testimony that defendant was referring to K.K. as a "faggot" and "homo," ultimately pointing a gun at him and saying "I don't fight faggots, I shoot them." See State v. Smith, 167 N.J. 158, 178 (2001) (holding prosecutor's arguments "'by way of comment, denunciation or appeal will afford no grounds for reversal'" if they are "based on the facts of the case and reasonable inferences therefrom") (quoting State v. Johnson, 31 N.J. 489, 510 (1960)).
Furthermore, there is no evidence the prosecutor's statements were intended to enlist the jury in a war against bullying. In an attempt to analogize this case to State v. Holmes, 255 N.J. Super. 248, 252 (App. Div. 1992), defendant mischaracterizes the prosecutor's opening remarks by saying she "improperly identified [defendant] with the social problem of bullying 'that we seem to hear a lot about these days.'" Instead, the prosecutor refers to bullying as something we usually identify with children and young people. Specifically, she asked the jury to understand bullies "come in all ages; all shapes; all sizes." The prosecutor did not suggest defendant was involved in some nationwide epidemic of bullying. Her comments only suggest defendant, despite being an adult, could engage in such activities as well.
The comments made by the prosecutor are more akin to those statements made in Wakefield where the prosecutor compared the defendant to a "wolf taking the lives of . . . two helpless sheep." Wakefield, supra, 190 N.J. at 466 (2007). In that case, the Supreme Court rejected defendant's claim of prosecutorial misconduct, noting the prosecution's "single metaphor . . . simply does not rise to the level where defendant's right to a fair trial is implicated." Id. at 467.
Although the prosecutor in this case referred to defendant as a "bully" more than once, such a metaphor is significantly less graphic or emotionally charged than comparing a defendant to a wolf killing innocent sheep. The references to defendant as a "bully" do not rise to the level of plain error. Any prejudicial effect resulting thereof did not deprive defendant of a fair trial. Ibid. See also Frost, supra, 158 N.J. at 83-84 (holding generally, "remarks will not be deemed prejudicial" if no objection was made at trial).
Next, we address defendant's assertion that the prosecutor impliedly asked the jury to draw an adverse missing-witness inference because defendant failed to produce certain family members and friends as witnesses. Here, the prosecutor's statements can be viewed simply as a response to defense counsel's summation, which questioned the integrity of the State's investigation. Specifically, during summation, defense counsel implied wrongdoing by the State when he rhetorically asked, "[t]he police go to interview any of these other witnesses about an alleged gun?"
Defense counsel was referring to defendant's relatives and friends who witnessed the incident, but were not called by either party to testify. The prosecutor simply responded to defense counsel's argument that the State failed to conduct a thorough investigation in this case. The comments by the prosecutor did not state an adverse-witness inference should be drawn by the jury against defendant. See Wakefield, supra, 190 N.J. at 469 (stating a prosecutor is permitted to make "fair comment in response to defendant's presentation").
Defendant also asserts certain statements made by the prosecutor during summation were "prejudicial" because they affected the jury's view of defendant's sister's credibility. Defendant concentrates on two statements by the prosecutor during summation where she (1) made reference to statements that were not in evidence and (2) arguably mischaracterized part of her first statement to the police. First, the prosecutor stated, "I asked [defendant's sister], 'How long between your first and your second statement?' And, she said, 'Fifteen to 20 minutes.' And, Detective Beltran said the same thing." Defendant's sister was never asked that question when she testified, and the portion of Beltran's testimony discussing the time between her first and second statements was given outside the presence of the jury during a Gross hearing. Therefore, the prosecutor discussed evidence not in the record. However, defense counsel did not object during summation.
Although the State does not deny its error, we agree with the State that a reasonable inference can be drawn from defendant's sister and Beltran's testimony that was in evidence, that fifteen to twenty minutes elapsed between her first and second statements to the police. During cross-examination by defense counsel, defendant's sister testified that following her first statement, she was placed in a holding cell for twenty minutes. She further testified that while in the holding cell, she decided to tell the police her brother had a gun during the altercation. Beltran also testified before the jury that defendant's sister was in a holding cell between the first and second statement, and that he did not remove her from the cell prior to the second statement.
We conclude the prosecutor's reference to evidence outside the record was incidental and did not prejudice defendant's rights. See Frost, supra, 158 N.J. at 83-84 (holding generally, "remarks will not be deemed prejudicial" if no objection was made at trial); See also State v. Orecchio, 16 N.J. 125, 129 (1954) (holding that granting a new trial based on incidental errors that "creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair . . . would be grossly unjust to the State and its people . . ."). Finally, defendant takes issue with the prosecutor's argument that his sister was "mad" during her first statement because she was "in a bad position" by being forced to talk about her brother. Although the first statement was not in evidence, the fact that the witness was in a bad position because she did not want to hurt her brother was a fair inference based on the evidence that was admitted. This remark did not prevent defendant from receiving a fair trial. Orecchio, supra, 16 N.J. at 129.
After a careful review of the record, it is clear the aforementioned statements by the prosecutor were either fair comment or harmless. Certainly, none of them deprived defendant of his "fundamental right to have a jury fairly evaluate the merits of his defense." Smith, supra, 167 N.J. at 182.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION