Opinion
DOCKET NO. A-0073-14T1
09-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VIRGIL SUGGS, a/k/a MALIK SUGGS, a/k/a MALIK HINTON, a/k/a VIRGIL L. SUGGS, a/k/a VIRGIL M. SUGGS, Defendant-Appellant.
Robert Carter Pierce, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-03-0525. Robert Carter Pierce, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Virgil Suggs appeals his August 19, 2014 judgment of conviction for murder and other offenses. We affirm.
I.
The following facts were elicited during defendant's seven-day jury trial. On October 1, 2012, at around 11:28 p.m., two women, Bronique McLeod and S.B., and two men, P.S. and R.P., were going to a club in Irvington. S.B. was driving a minivan with McLeod in the front passenger seat, P.S. sitting behind S.B., and R.P. sitting behind McLeod.
Due to the nature of the case, we use initials to describe these victims, who testified for the State.
While stopped at a red light at the intersection of Osborne Terrace and Hawthorne Avenue, the minivan's windows shattered as someone opened fire. The shooter stood about a car's-width away firing multiple shots into the passenger side of the minivan. After S.B. managed to drive away, McLeod said she had been shot. S.B. drove to a hospital, where McLeod died within hours. R.P. had been shot in the knee, and was hospitalized for ten days.
P.S. and S.B. gave statements to Detective Sergeant Peter Cassidy. Both told Cassidy that the shooter had short afro hair, a beard or goatee with gray in it, and a tall, stocky build. They also told Cassidy that the shooter was wearing a blue New York Giants football jersey with white numbers on it.
Shortly thereafter, the police obtained surveillance camera footage from Osborne Terrace that depicted the minivan being followed by a black compact car. Two male passengers exited the car apparently holding handguns. One man was wearing a blue football jersey bearing the number "98." That man walked off-camera towards Hawthorne Avenue, and soon returned into frame. The two men got into the car and left. Detective Sergeant Cassidy believed the video depicted the shooter shortly before and after the shooting.
On October 5, 2012, Detective Sergeant Cassidy and Detective Thomas McEnroe reviewed the video at the courthouse. In the courthouse, Cassidy noticed defendant, who fit the description given by P.S. and S.B., and who was wearing a blue Giants jersey bearing the number "98." Cassidy followed defendant to a courtroom and ascertained his age and identity from the court deputy. Cassidy then directed two detectives to watch defendant.
Detective Green testified defendant voluntarily went to an interview room in the courthouse. Lieutenant Thomas Kelly prepared a photo array using a month-old photo of defendant.
Detective Sergeant Cassidy and Detective McEnroe quickly brought P.S. and S.B. to the courthouse. P.S. and S.B. were separately shown a photo array with the same six photos, arranged in different orders. Both positively identified defendant as the shooter. Detective Sergeant Cassidy and Detective McEnroe then entered the interview room and placed defendant under arrest. The police took photographs of him wearing the #98 Giants football jersey.
Several days later, R.P. also positively identified defendant using a photo array that contained the same six photos, arranged in a different order.
The grand jury charged defendant with: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, 2C:11-3A(1)-(2) (count one); first-degree murder of McLeod, N.J.S.A. 2C:11-3(a)(1)-(2) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and first-degree attempted murder of R.P., P.S., and S.B. respectively, N.J.S.A. 2C:5-1, 2C:11-3 (counts five, six, and seven).
The trial jury convicted defendant on all counts. On count two, defendant received a life sentence with 85% to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count five, defendant received a consecutive twenty-year sentence with an 85% parole disqualification. On counts four, six, and seven, defendant received concurrent twenty-year sentences with 85% parole disqualification. The remaining counts merged.
Defendant appeals, arguing:
POINT I - MR. SUGGS WAS DEPRIVED A FAIR TRIAL BECAUSE THE STATE INTRODUCED EVIDENCE OF MR. SUGGS' POST-ARREST SILENCE AND ARGUED TO THE JURY THAT HIS SILENCE WAS EVIDENCE OF HIS GUILT. (Not Raised Below).
POINT II - MR. SUGGS WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY, SUA SPONTE, THAT THEY COULD NOT USE EVIDENCE OF MR. SUGGS' POST-ARREST SILENCE AS EVIDENCE OF HIS GUILT. (Not Raised Below).
POINT III - THE PROSECUTOR'S SUMMATION WAS FILLED WITH IMPROPER REMARKS THAT DEPRIVED MR. SUGGS OF A FAIR TRIAL. (Not Raised Below).
POINT IV - MR. SUGGS WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BECAUSE THE STATE WAS PERMITTED TO INTRODUCE PHOTOGRAPHS OF MR. SUGGS WEARING AN IDENTICAL #98 GIANTS FOOTBALL JERSEY THAT WAS WORN BY THE ALLEGED SHOOTER IN THE VIDEO WHERE IT WAS IMPOSSIBLE TO MAKE AN IDENTIFICATION BECAUSE OF THE POOR QUALITY OF THE VIDEO. THE PROBATIVE VALUE OF THIS EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE AND THAT IT WOULD MISLEAD THE JURY. (Not Raised Below).
POINT V - THE TRIAL COURT ERRED BY DENYING MR. SUGGS' MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATIONS OF [P.S.], [S.B.] AND [R.P.] BECAUSE THE PHOTOGRAPHIC ARRAY WAS IMPERMISSIBLY SUGGESTIVE.
POINT VI - MR. SUGGS WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO GIVE A CURATIVE INSTRUCTION, SUA SPONTE, AFTER SGT. CASSIDY TESTIFIED THAT AN AFFIDAVIT WAS DRAWN AND PRESENTED TO A JUDGE FOR AN ARREST WARRANT. (Not Raised Below).
POINT VII - MR. SUGGS WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FROM THE COMMENCEMENT OF TRIAL UNTIL ITS CONCLUSION. (Not Raised Below).
II.
In his only preserved claim, defendant argues the trial court erred in denying his motion to suppress the out-of-court identifications of P.S., S.B., and R.P. We must hew to our standard of review.
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record.Moreover, we owe no deference to a trial court's "'interpretation of the law' because '[l]egal issues are reviewed de novo.'" Ibid. (citation omitted).
[State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).]
The trial court conducted a Wade hearing to address defendant's motion to suppress the out-of-court identifications. See United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Defendant argued the out-of-court identifications should be suppressed because: (1) defendant appeared to be wearing "athletic gear" in his photo; (2) defendant appeared angry or was grimacing in his photo, while other photos did not have similar facial expressions; and (3) the police should not have used the same six photos for all three witnesses. The court found the identification process was not impermissibly suggestive. We agree.
Questions regarding eyewitness identifications and their reliability are governed by our Supreme Court's decision in State v. Henderson, 208 N.J. 208 (2011). Under Henderson, "if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence." Id. at 289.
Defendant has failed to show that there was a "very substantial likelihood of irreparable misidentification" in the photo array. Ibid. It is indiscernible whether defendant is wearing "athletic garb" in his photo. Moreover, even if defendant is slightly grimacing in his photo, the overall difference between all of the photos is negligible. "[E]ven where photographs differ from others in the array, that does not render them impermissibly suggestive." State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994). Finally, defendant has not demonstrated why showing the same photos to different witnesses would be suggestive.
III.
Defendant's remaining claims on appeal were not raised before the trial court. He must therefore show plain error. R. 2:10-2. To show plain error, "'defendant has the burden of proving that the error was clear and obvious,'" and that it had "'the clear capacity to bring about an unjust result.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citations omitted).
IV.
Defendant's first two claims arise out of his trial testimony that he told Detective McEnroe an alibi, but did not tell McEnroe about the one verifiable aspect of his alibi because McEnroe never asked.
At trial, defendant testified as follows. On October 5, defendant was at the courthouse for another matter. He was wearing a blue New York Giants football jersey. As defendant was trying to enter the courtroom, he was grabbed by officers and taken to an interview room. He was not told whether he had been charged.
As defendant was waiting in the interview room, Detective McEnroe came into the room and engaged defendant in a conversation. Defendant told McEnroe that he was not on Osborne Terrace on the night of the shooting. Rather, defendant was going to a bar when he noticed a crowd gathered near the bar. He approached the crowd and received upsetting news that caused him to start "reflecting on life." He went to Irvington Park around 9:30 p.m. and sat by the lake, cried, and skipped rocks across the water. He walked to the Irvington bus terminal, took a cab, and arrived home around midnight. On cross-examination, defendant repeatedly testified that he did not tell McEnroe about taking a cab, because McEnroe "never asked."
Defendant also testified that after this conversation, Detective McEnroe left, and occasionally reentered the room. Later, Detective Sergeant Cassidy entered the room and read defendant his rights. Defendant told him "I don't know this person, . . . I don't know what's going on." Defendant testified he then "remained silent. I told him I have nothing to say[.]"
On rebuttal, Detective McEnroe testified that he never had a conversation alone with defendant, that defendant had not told him of his purported alibi, and that any conversation would have been recorded pursuant to police department policy. McEnroe testified the only conversation was when he and Detective Sergeant Cassidy entered and spoke with defendant.
The prosecutor then played the video of that conversation. The transcript of the video shows that Cassidy informed defendant that he had been charged with murder. Then Cassidy read defendant his Miranda rights. After defendant acknowledged his rights, Cassidy said he was going to ask questions about "the shooting death of Bronique McLeod which occurred on Monday, 10/1/2012, at approximately 11:28 p.m. in the area of . . . the intersection of Hawthorne and Osborne Terrace." McEnroe asked if defendant was willing to talk with them. Defendant responded "I don't know nothing about that incident," and "I ain't got nothing to say because . . . I don't know nobody by that name." After McEnroe told defendant he was under arrest for murder, defendant requested an attorney, and the detectives ended the interview.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On cross-examination, defense counsel elicited from McEnroe that earlier during the video defendant was in the interview room unattended. Defense counsel then had the jury watch the earlier fifteen minutes of the video, during which defendant sat unattended.
During summation, defense counsel referenced the video of defendant in the interview room with Detective Sergeant Cassidy and Detective McEnroe. Defense counsel argued:
When he testified McEnroe indicated that — you saw on the video, the point when he was told he was charged with — he indicated they took me downstairs, nobody told me what I was charged with. The Prosecutor asked him a question, "Nobody told you what you were charged with?" "No, nobody told me what I was charged with."
Oh, sure, Det. McEnroe indicated it wasn't until three o'clock in the afternoon after being taken into custody some time from around 10:30 in the morning . . . .
Now 10:30, 11:30, one, two — four and half [sic] hours he's not being told what he's being charged. Does that explain that long face? Sitting around all day and then they come and tell him he's charged with murder and invited him to give a statement? About what? What do I have to say?
He tells them I don't want to make a statement. We're willing to talk to you. Talk to me about what? I don't know what you're talking about. I have nothing to say.
During his summation, the prosecutor responded:
So finally his testimony concerning what happened on October 5th. If there's anything that demonstrates falsehood, it's that.
. . .
Now they go down there, right? McEnroe comes in and out of the room, that's what he said, talking to him. Where were you? Now so McEnroe comes into the room, okay? And talking to him about the case, "Where were you?" He starts to tell him — I was telling them where I was that night, this tragic thing that happened to my friend, someone
was killed or something and McEnroe goes, "Yeah, I know all about that." I was telling them I was in the park. And didn't tell them that you took a cab ride. Why not? Didn't ask me. All right.
You mean like something that could be verified, that you took a cab? I didn't tell him that part. He didn't ask. All right. Then the next thing I know Cassidy busting in the door saying did you see the video? You saw the video? Did you see the video? Okay, it's horrible. Is Cassidy busting the door? He came in, he came in, sat down, McEnroe came in, sat down. You see them on that tape this morning? He's just sitting there, okay? He talked to McEnroe already, he doesn't seem like — from looking at that tape it seemed like he never seen him before. You remember Det. Cassidy introduced McEnroe to him? "This is Det. McEnroe" as I recall from the video. Charging him with murder. What?
But I am saying now if you — if he just got done telling McEnroe all this stuff, the park, I was here, there, I mean he's saying he didn't give me a chance, he didn't ask. He's asking on the video, isn't he? Okay. But if he had told McEnroe that stuff earlier, wouldn't the reaction have been I just told you where I was. You're charging me with murder, right? Just sat there head down. Then [defense counsel] played the whole part before, fifteen minutes.
We were going to interview him, we turned it on before we went in, it was on for fifteen minutes or whatever he said, head down, yeah, um hum, that's the look, um hum, that's the look of ultimate uh-oh, they got me. Head down. All right?
Hey look, tell me something. The detectives who worked this case, right? You saw it.
On appeal, defendant claims the introduction of the video and the prosecutor's closing argument violated his right to remain silent. However, defendant did not object, so he must show plain error.
The privilege against self-incrimination is guaranteed by the United States Constitution and by New Jersey statute, rule, and common law. State v. Stas, 212 N.J. 37, 50-51 (2012). Under the United States Constitution, "if a defendant receives Miranda warnings and elects not to give a statement, the State may not 'impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story . . . at the time of his arrest.'" State v. Elkwisni, 190 N.J. 169, 177 (2007) (quoting Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 2241, 49 L. Ed. 2d 91, 94 (1976)). Similarly, "[o]ur state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." Ibid. (quoting State v. Muhammad, 182 N.J. 551, 569 (2005) (citations omitted)).
However, our Supreme Court has highlighted three instances where the State can question a defendant's failure to tell an exculpatory story earlier. First, "when a defendant testifies, 'pre-arrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved.'" State v. Brown, 190 N.J. 144, 158 (2007) (citation omitted). Second, "it is not an infringement of a defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her statements that were freely given." State v. Tucker, 190 N.J. 183, 189 (2007). Third, "the State is not prohibited from using defendant's post-arrest silence when defendant testifies to 'an exculpatory version of events and claims to have told the police the same version upon arrest . . . [as] the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest.'" Elkwisni, supra, 190 N.J. at 177 (quoting Doyle, supra, 426 U.S. at 619 n.11, 96 S. Ct. at 2245 n.11, 49 L. Ed. 2d at 98 n.11).
A.
Based on these principles, the admission of the video on rebuttal was not plain error. After defendant testified that he told Detective McEnroe his alibi but did not reveal he had taken a cab because McEnroe "never asked," the State could attempt to counter his testimony by introducing the video showing McEnroe and Cassidy asking defendant if he wished to tell them anything about the events of that night.
Where a defendant testified that "no police official asked him for his version of the events," the "defendant necessarily raised the issue of his post-arrest silence" if the police asked for his version at that time. State v. Jenkins, 299 N.J. Super. 61, 68 (App. Div. 1997). Similarly here, defendant's claim that Detective McEnroe never asked about whether he took a cab "'opened the door' to this otherwise protected area," justifying the introduction of evidence that McEnroe asked defendant to provide his version of events and he declined. Ibid.
"The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to" evidence introduced by the opposing party if necessary "to prevent prejudice." State v. James, 144 N.J. 538, 554, 556 (1996). Here, where defense counsel was arguing that the detectives rushed to condemn defendant based solely on his jersey, failed to investigate other alternatives, and failed to consider defendant's alibi, it would have been prejudicial to deny the State the opportunity to show that the detectives did ask defendant for his version.
Moreover, defendant had earlier testified that he responded he did not know McLeod or know about the shooting, and that he then chose to remain silent. Thus, the video revealed nothing that defendant had not already told the jury in his testimony. Therefore, the video was not "clearly capable of producing an unjust result." R. 2:10-2.
B.
Defendant does not and cannot complain the jury later also saw the first fifteen minutes of the video, because that was shown to the jury at defense counsel's request. Under the invited error doctrine, "trial errors that '"were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]"'" State v. A.R., 213 N.J. 542, 561 (2013) (citations omitted). Because "defense counsel actively encouraged the jury to review the video[,]" any "error was plainly invited." Ibid.
Defendant also cannot show plain error in the prosecutor's comment in closing that the video "was on for fifteen minutes" during which defendant had his "head down" in "the look of ultimate uh-oh, they got me. Head down." "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. R.B., 183 N.J. 308, 332 (2005). "[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), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Further, the prosecutor was responding to defense counsel's argument about the part of the video elicited by the defense. Defense counsel argued that the video showed defendant with a "long face" because he had been "[s]itting around all day" without "being told what he's being charged." Defense counsel argued that those circumstances "explain the face. Explain the long face that Mr. Suggs had[.]" Given that argument, "the prosecutor had a right, if not a duty, in the presentation of the State's case . . . to offer the State's version as to why defendant" had that demeanor. Jenkins, supra, 2 99 N.J. Super. at 69. Even "[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).
Moreover, the prosecutor was clearly commenting on defendant's demeanor, not his silence while alone in a room. See State v. Marshall, 123 N.J. 1, 115 (1991) (ruling that commenting on the defendant's demeanor did not "contravene[] defendant's right to silence"), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Defendant had no one to talk to, so his silence was unremarked on and unremarkable.
In any event, the fifteen minutes of the video involved a pre-arrest period when no detectives were in the room. "[W]hen there is no governmental compulsion involved, the State may fairly cross-examine the defendant concerning pre-arrest conduct or silence." Brown, supra, 190 N.J. at 148. Even if this period was "'at or near' the time of his arrest [or] when he was in police custody," Muhammad, 182 N.J. at 572-73, the complete absence of police compulsion, and indeed the police, distinguishes this case from the cases cited by defendant. For all these reasons, he cannot show that any "error was clear and obvious and that it affected his substantial rights." Koskovich, supra, 168 N.J. at 529.
C.
Defendant also complains about the prosecutor's argument that defendant testified Detective McEnroe "didn't ask. He's asking on the video, isn't he?" Defendant also cites the prosecutor's comment "Hey look, tell me something. The detectives who worked this case, right? You saw it." As set forth above, the prosecutor's argument was proper because defendant opened the door by testifying that Detective McEnroe "didn't ask." The prosecutor could rebut that testimony by showing that McEnroe did ask on the video for defendant to tell him something.
The prosecutor added: "But if he had told McEnroe that stuff earlier, wouldn't the reaction have been I just told you where I was. . . ? Just sat there head down." In Jenkins, supra, after the defense counsel argued that the authorities never asked him for his version, the prosecutor argued to the jurors that the defendant "never once talks to the Prosecutor's Office. He never once tries to explain until he's here in front of you." 299 N.J. Super. at 66. We noted that "the prosecutor's comments in the present matter concerning defendant's post-arrest silence ordinarily would be improper. Here, however, defendant 'opened the door' to this otherwise protected area, justifying the prosecutor's comments on defendant's post-arrest silence." Id. at 68 (citation omitted). We ruled that "the prosecutor's comments on summation concerning defendant's post-arrest silence did not constitute error, let alone plain error, requiring a reversal of defendant's convictions." Id. at 69.
In any event, defendant has not shown the prosecutor's argument was "clearly capable of producing an unjust result." R. 2:10-2. As set forth above, defendant had testifed that he chose to remain silent when questioned by the detectives. Moreover, defense counsel had argued to the jury that defendant told the detective "I don't want to make a statement." Therefore, the prosecutor's reference to defendant's silence did not tell the jurors anything defendant and defense counsel had not already told them.
Further, defendant already testified that he did not remain entirely silent, but told the detectives that he did not know anyone named McLeod and he did not know anything about her shooting. Defendant's exculpatory answer lessened any possibility of prejudice.
Moreover, the prosecutor's additional argument was brief. In Elkwisni, supra, the defense objected when the prosecutor asked the defendant why he did not tell his story to the officers as soon as they entered the store and arrested him. 190 N.J. at 180. Our Supreme Court found that "in the absence of testimony by the defendant that he told the police what happened immediately upon his arrest, it was improper for the State to comment on his silence at the time they placed him under arrest." Id. at 181. Nonetheless, the Court ruled that "the prosecutor's brief transgression" did not warrant a new trial, was "harmless and could not have affected the outcome of the case." Ibid.
Similarly, we have held that a "prosecutor's brief and isolated allusion to defendant's failure to apprise the police of exculpatory facts later described at trial was completely harmless and had no impact upon the jury's deliberations. We emphasize that the entire incident occupied only several lines in the transcript of a lengthy trial." State v. Marks, 201 N.J. Super. 514, 533 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986).
In Marks, we noted that "the proof of guilt was very strong." Ibid. Here, the evidence of guilt was also strong. There were three eyewitnesses to the crime, and all three witnesses positively, separately, and independently identified defendant as the shooter both before and at trial. They all identified him as wearing a blue Giants jersey with white numbers. Their identifications were corroborated by the surveillance video, which showed defendant wearing a blue football jersey bearing the white number "98," going up to the victims' car holding a handgun, and fleeing shortly thereafter. The eyewitnesses' identificiations were also corroborated by defendant's apprehension within days wearing a blue Giants jersey bearing the white number "98." Thus, we do not believe any reference to "silence was a significant factor in defendant's conviction." Cf. Stas, supra, 212 N.J. at 59.
Finally, because defendant failed to object, he "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). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Id. at 576. "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Ibid. Thus, 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. Ingram, 196 N.J. 23, 42 (2008) (citations omitted).
D.
Finally, defendant argues the trial court should have sua sponte issued a curative instruction to the jury regarding the prosecutor's comments during summation. In Elkwisni, supra, our Supreme Court held that a trial court should instruct the jury that "evidence [of a defendant's silence] should be limited to assessing defendant's credibility and that it may not be used in determining whether defendant is guilty or not guilty." 190 N.J. at 182. However, the Court found that "the failure to give an instruction to limit the testimony concerning defendant's conduct and silence to assessing his credibility could not have changed the result." Ibid. Because the "case depended on whose side of the story the jury believed," and because of the substantial evidence presented by the State, the Court found the lack of such an instruction was not plain error. Id. at 181.
Here, the State presented substantial evidence of guilt, and the case depended on whether the jury believed defendant or the three witnesses and the surveillance video. In these circumstances, the lack of an instruction was not clearly capable of producing an unjust result. See Brown, supra, 190 N.J. at 161 (finding "the failure to give a charge that limited the jury's use of defendant's pre-arrest conduct or silence to assess defendant's credibility was not" plain error); see also State v. Camacho, 218 N.J. 533, 551-55 (2014) (finding no plain error in failing to instruct the jury that it may not draw an adverse inference from defendant's exercise of his right to remain silent).
V.
Defendant next attacks the prosecutor's argument that "you remember Detective Cassidy introduced McEnroe to him? 'This is Detective McEnroe' as I recall from the video." This accurately related the transcript of the video, which shows Detective Sergeant Cassidy stating "I'm Sergeant Cassidy. This is Detective McEnroe."
Defendant notes that earlier in the transcript it states:
DET. MCENROE: Virgil --Defendant claims that this shows McEnroe introducing Cassidy to defendant, and that the prosecutor thus misled the jury. However, the prosecutor was not required to agree with defendant's claim.
(Video Skips)
DET. MCENROE: This is Sergeant --
(Video Skips)
In any event, the trial court instructed the jurors: "[y]ou will only consider such facts which in your judgment have been proven by the testimony of the witnesses or from exhibits admitted into evidence by the Court." The court continued: "it is your recollection of the evidence that should guide you as the judges of the facts. Arguments, statements, remarks, openings and closing of counsel are not evidence and must not be treated as evidence."
"We act on the belief and expectation that jurors will follow the instructions given them by the court." State v. T.J.M., 220 N.J. 220, 237 (2015). The jury viewed the video and heard the testimony from all of the witnesses, including defendant, and could judge for itself who introduced whom. Thus, defendant has not shown that any inaccuracy in the prosecution's recollection of the video was "clearly capable of producing an unjust result." R. 2:10-2.
Defendant also challenges the prosecutor's comments that defendant resembled the "murderer" filmed in the video, that there was "no corroboration" for defendant's alibi testimony, and that "[a]n innocent person would give believable testimony." These challenges lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
VI.
Defendant argues it was improper to allow the jury to watch the surveillance video while holding a photo of defendant wearing the Giants football jersey next to the video screen. We disagree. It was not plain error to allow the jury to compare two pieces of evidence that were properly admitted without objection. See also State v. Lazo, 209 N.J. 9, 24 (2012) (noting that to determine whether "defendant's arrest photo closely resembled the composite sketch," the jurors "could have compared the photo and the sketch on their own"). Comparison of the photo and the video was a reasonable way for the jury to determine whether or not defendant was the person shown in the video, based not only on the jersey but on build, skin tone, and facial hair. The jury's in-court comparison was not an identification procedure subject to Henderson, which addresses "out-of-court identifications" by eyewitnesses, using pre-trial hearings. See State v. Jones, 224 N.J. 70, 85 n.2 (2016); Henderson, supra, 208 N.J. at 288-89.
To the extent defendant is challenging the admission of the surveillance video or photographs, he has not shown an abuse of discretion, let alone plain error. See State v. Patterson, 435 N.J. Super. 498, 507 (App. Div. 2014). --------
VII.
Defendant argues the trial court should have provided a curative instruction sua sponte after the following comment by Detective Sergeant Cassidy during cross-examination:
[DEFENSE COUNSEL]: Once the identification was made that's when [defendant] was placed in custody?
CASSIDY: Affidavit was drawn and warrants were presented to a Judge and then he was —
THE COURT: Don't say this unless —
CASSIDY: Okay.
[DEFENSE COUNSEL]: I'll move on.
Defendant argues it was prejudicial to permit Detective Sergeant Cassidy to testify that warrants were presented to a judge because the jury could infer that a judge had already deemed defendant guilty. We disagree. Cassidy was interrupted before he could say whether the judge had issued the warrants. Moreover, defense counsel felt it was sufficient to "move on." "[A]ttorneys making strategic decisions based on information within their exclusive ken — information oftentimes unknown to the trial judge — are in the best position to gauge when to object to a perceived error and whether to request a curative instruction." State v. Yough, 208 N.J. 385, 397 (2011). The trial court similarly felt that was sufficient. "Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" Yough, supra, 208 N.J. at 397.
Even if the comment had revealed that warrants had issued, "[t]he fact remains, however, that defendant did not object. Considering the problem only briefly surfaced here, we find no prejudice of sufficient stature to warrant a new trial on this particular ground." State v. Gonzalez, 444 N.J. Super. 62, 81 (App. Div.), certif. denied, 226 N.J. 209 (2016); see State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) ("We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant."); cf. State v. Cain, 224 N.J. 410, 435 (2016) ("the prosecutor mentioned the existence of a search warrant no less than fifteen times"). Finally, "the passing reference" that the State sought warrants after the three witnesses identified defendant "did not imply that the State had any evidence in addition to that which was heard by the jury." State v. Williams, 404 N.J. Super. 147, 167-68 (App. Div. 2008). Defendant has not shown Cassidy's interrupted answer was "clearly capable of producing an unjust result." R. 2:10-2.
VIII.
Finally, defendant claims on direct appeal his trial counsel was ineffective. To show ineffective assistance of counsel, defendant must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987). "'First, defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009). "'Second, defendant must show that the deficient performance prejudiced the defense.'" Ibid.
Defendant claims that counsel was ineffective for failing to object to, or requested curative instructions for, the alleged errors discussed above. As we have found no error or prejudice, defense counsel was not ineffective regarding those claims.
Defendant additionally claims his counsel: (1) wrongly elicited his choice to remain silent; (2) failed to cross-examine the eyewitnesses; and (3) did not prosecute defendant's pro se motions to (a) suppress the photos of him in the Giants jersey and the jersey itself, and (b) dismiss for lack of probable cause. Defendant also claims defense counsel had a conflict of interest because he knew P.S. from playing basketball. All of these claims involve matters outside the trial record, including counsel's reasons. There is "a general policy against entertaining ineffective assistance-of-counsel claims on direct appeal because such claims [often] involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Thus, we decline to address defendant's additional ineffectiveness claims, "without prejudice to [any] right that he may have to raise this issue in post-conviction relief proceedings." State v. Lofton, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION