Opinion
DOCKET NO. A-0228-14T2
05-24-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KARON D. TOWNES, a/k/a PRINCE TOWNES, KARON TOWERS, DESHAWN TOWNES, AND KARON TOWNS, Defendant-Appellant.
Brooke M. Barnett, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-06-1513. Brooke M. Barnett, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Karon D. Townes appeals from a judgment of conviction entered after a jury found him guilty of first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3; second- degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). After considering defendant's arguments in light of our review of the record and applicable legal principles, we affirm.
On October 9, 2011, police officers responded to a reported shooting and discovered the victim, A.O., lying face down on the sidewalk, having been shot in the back. A.O. identified defendant as the shooter.
We use initials for the purpose of confidentiality.
Prior to trial, a Rule 404(b) hearing was held to determine the admissibility of defendant's actions and his relationship with A.O. leading up to the shooting. Although the judge found some proffered areas of questioning were inadmissible, she ruled that testimony about defendant's actions in the six months before the shooting was permissible.
In the months before the shooting, A.O. was selling drugs in the neighborhood. He testified that defendant had asked him several times to work with him selling drugs, however, A.O. had declined the offers.
At trial, A.O. testified that he and defendant had an argument two days prior to the shooting and on October 9, defendant approached A.O. expressing a desire to resolve the dispute. After driving around for a period of time together, defendant asked A.O. again about selling drugs together. When A.O. hesitated, defendant stated that he was hungry and wanted to stop and get something to eat.
After defendant instructed A.O. to pull over on a side street, both men got out of the car, with A.O. walking ahead of defendant. A.O. then heard a "pop, pop" behind him and fell to the ground.
At the close of the State's summation, defense counsel stated: "I know it's the end of the day, tomorrow I will supply the court with some objections regarding the summation of the prosecutor." The judge responded that she wanted to handle the issues right then. Defense counsel advised he was objecting to the prosecutor's comment: "Why would the [police officer] lie?" Counsel argued the prosecutor was vouching for the credibility of the officers in making that comment and asked that the judge rectify the matter with the jury.
The following day, defendant expanded the scope of his objection, arguing improprieties in numerous portions of the State's summation and requesting a mistrial. After reviewing a transcript of the summation, the trial judge denied the motion, finding that the State's comments were directed to the credibility of the testifying police officers. Although she disagreed that the prosecutor was at any point vouching for the officers, the judge was concerned with one remark in the closing argument when the prosecutor queried whether a detective would put his career on the line for the case. The judge gave a curative instruction to the jury and struck the comments from the record prior to the jury charge. The jury found defendant guilty on all charges.
On appeal, defendant raises the following issues:
POINT I: THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL UNDER THE GUARANTEES OF THE STATE AND FEDERAL CONSTITUTION.
A. The prosecutor improperly bolstered and/or vouched for the credibility of her witnesses.
B. The prosecutor exalted her role as prosecutor and disparaged/denigrated defense counsel and their defense.
C. The prosecutor commented on facts not in evidence and improperly argued inaccurate assertions that were not supported by the trial record.
POINT II: THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO ELICIT TESTIMONY FROM THE VICTIM, [A.O.] THAT WAS HIGHLY PREJUDICIAL, INFLAMED THE JURY AND WAS OUTSIDE THE SCOPE OF DEFENSE COUNSEL'S CROSS EXAMINATION, IN VIOLATION OF NEW JERSEY RULES OF EVIDENCE N.J.R.E. 403.
POINT III: THE TRIAL COURT ERRED IN ADMITTING HIGHLY PREJUDICIAL EVIDENCE OF OTHER BAD ACTS WHICH WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE, THE
PREJUDICIAL VALUE OF WHICH OUTWEIGHED ITS PROBATIVE VALUE, AND DEPRIVED THE APPELLANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. V, VI, AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9.
A. The trial court erred in admitting other crimes or bad acts evidence, as the state failed to prove the other crimes or prior bad acts by clear and convincing evidence in violation of N.J.R.E. 404(b).
POINT IV: THE TRIAL COURT ERRED WHEN IT ALLOWED EVIDENCE THAT SHOULD HAVE BEEN PRECLUDED DUE TO THE PROSECUTION'S FAILURE TO TURN OVER THE EVIDENCE IN DISCOVERY.
POINT V: THE TRIAL COURTS ERRED WHEN DENYING DEFENSE'S REQUEST FOR A MISTRIAL.
A. The trial judge's curative instruction was not adequate.
POINT VI: THE PROSECUTOR'S CUMULATIVE IMPACT OF HER MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL.
A. Summation of all errors altogether.
Defendant argues that the prosecutor's remarks in her closing statement were improper and so prejudicial as to warrant a reversal of the conviction. He contends that the prosecutor (1) impermissibly vouched for the credibility of the State's witnesses; (2) "denigrated" and "disparaged" the defense; and (3) commented on facts not in evidence. We disagree.
When reviewing a prosecutor's statements, an appellate court must evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial and conclude that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (citation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). To that end, reversal is justified when the prosecutor's conduct was "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 438 (citation omitted).
We first consider defendant's argument that the prosecutor's comments during summation improperly vouched for several police officers and the victim. He specifically objects to the following comments concerning the officers:
You would have to believe that these officers came in here, Officer Mendez came in here to completely deceive you, to lie to you. 15 years on the force, 15 years with East Orange P.D.
. . . .
. . . That's for entertainment. But Officer Mendez is real life. This is real life. 15 years. This is what I do.
Officer Mendez is not going to come in here and try to make up some story when he didn't know the defendant, didn't know the victim. Why? Why?
. . . .
Do you think Officer Wilson who came in here and sat here who said she's in Zone Three, do you think she came in here to lie to you? To misrepresent what she did for some type of conspiracy against the defendant? Why? Why?
That makes no sense.
. . . .
Did Det. Mendez have an interest in this case? I mean he's a detective 15 years, but is his career going to be on the line for this case? He has no interest in this case.
The State responded that the comments were made in response to the defense attacks on the credibility of the officers, victim, and other State witnesses. In his summation, defense counsel stated:
The State told you [that you] are going to hear the responding officers and you will be firmly convinced beyond a reasonable doubt that [defendant] attempted to murder [A.O.] . . . .
Now I ask you, after those two officers testified, did you feel that way?
. . . Weren't they being somewhat evasive?
Weren't they using deniability with regard to the reports that they generated saying "I don't know who wrote that report"?
Why are law enforcement officers coming to [c]ourt and saying: "I don't know. I don't know why that happened. I don't know."
A prosecutor may not vouch for testifying police officers by stating that the officer would not lie because of the magnitude of the charges, State v. Frost, 158 N.J. 76, 85 (1999); had no motive to lie, State v. R.B., 183 N.J. 308, 331-32 (2005); or would face severe consequences if he or she was not being truthful. State v. West, 145 N.J. Super. 226, 233-34 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977).
We find the prosecutor's remark concerning Mendez troubling and improper. The State attempted to justify the comments as properly responsive to the defense's continuous attacks on the officers' credibility in his opening statement, cross-examination and summation. But it is improper for a prosecutor to invite a jury to speculate whether certain testimony of a police officer might have an effect on his or her career. Although we find the remark to be improper, we do not find it to have been so egregious to have deprived defendant of a fair trial. Following defendant's objection and motion for mistrial, the judge issued a curative instruction to the jury and directed the comments be stricken. She stated:
During the State's closing remarks you may have heard a reference suggested that a police officer's career would be placed on the line based upon the outcome of the case.The judge then proceeded to the jury charge.
There has been no evidence produced at this trial to support such a belief. Moreover it would be completely irrelevant to the issues before you.
It is improper to imply that police testimony should be accepted not because of its believability but merely because a police officer's career would be on the line.
Therefore I am ordering this comment stricken from the record. I instruct that you are not to consider it during the course of your deliberations in this case.
The prosecutor's comment was addressed and cured with a strong instruction by the trial judge. She singled out the offensive comment and specifically advised the jury of its impropriety and that it should be stricken. We find the judge's actions appropriate and unlike those in Frost, supra, 158 N.J. at 86 (holding trial judge erred in failing to provide curative instructive regarding prosecutor's improper comments and merely instructed the jury in its general charge to disregard the attorneys' comments if it conflicted with their recollection of the evidence). See also State v. Ramseur, 106 N.J. 123, 322 (1987) (finding prosecutor's comments were improper, but did not reach the level of reversible error).
We conclude there was insufficient prejudice to warrant a mistrial or reversal of the conviction. See State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994) (holding a curative instruction is sufficient to save a conviction from reversal even when the prosecutor makes a clearly improper statement). We are satisfied that the subject comments did not have the clear capacity to have led to an unjust verdict.
We find defendant's remaining contentions to be without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and add only the following brief remarks. Defendant argues the trial judge erroneously permitted evidence of other bad acts during A.O.'s testimony. Following a Rule 404(b) hearing, the trial judge analyzed the four prongs required by State v. Cofield, 127 N.J. 328 (1992). Defendant takes issue with the judge's ruling on prongs three and four, arguing the proofs of evidence of the other crimes were not made by clear and convincing evidence and that any probative value of the evidence was outweighed by its prejudicial value. We again disagree.
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
The judge noted A.O.'s credibility, remarking on his straightforward testimony, and the impact the shooting and his resultant injuries had on his life, and she concluded his testimony provided clear and convincing evidence of the other crimes. She similarly went through her reasons for finding the probative value of the evidence outweighed its prejudicial impact. She was clear in placing limitations on the State with regard to the prior bad acts testimony. There was no abuse of discretion in the judge's ruling on these issues.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION