STATE OF NEW JERSEY v. BERNARD JENKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4675-03T44675-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARD JENKINS,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Essex

County, Docket No. 02-10-3603.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert D. Van

Pelt, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Lucille M. Rosano,

Special Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

An Essex County jury found defendant, Bernard Jenkins, guilty of several drug offenses including third-degree possession of heroin and cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7, and second-degree possession of heroin and cocaine with intent to distribute within a public housing zone, N.J.S.A. 2C:35-7.1. Judge Michael Nelson sentenced defendant to an aggregate seven years imprisonment, with three of those years to be served without parole. On appeal, defendant raises seven appeal points. Defendant challenges various actions by the judge including the denial of defendant's motion for a mistrial based upon the prosecutor's summation; instructions that "incorrectly narrowed the focus of the jury's attention to the state's version of the facts;" and the denial of defendant's motion for judgment of acquittal "because the evidence presented at trial was insufficient to warrant a conviction of the crimes charged." Defendant also challenges the sentence for failure to merge the school zone conviction into the housing facility conviction; for being improper and excessive; and for being "beyond the statutory maximum, or presumptive term" and based on facts that "were not submitted to a jury." In addition, defendant claims that counsel was ineffective because counsel failed to move for a judgment of acquittal. We agree with defendant's merger argument, but reject all of the others. Only the following relatively brief observations are in order.

The evidence against defendant consisted of testimony by two detectives who observed defendant's participation in drug transactions in the Broadway Townhouse parking lot. The defense consisted of testimony by a juvenile co-defendant. The co-defendant testified that only he was selling drugs and that defendant had nothing to do with any of the sales. In fact, according to co-defendant, defendant was merely passing through the parking lot and paused momentarily to speak with co-defendant who, unbeknownst to defendant, had been engaged in drug trafficking.

At trial, Judge Nelson played a relatively active role in controlling the proceeding. The judge promptly corrected misstatements by both parties. When the judge corrected defense counsel, motions for mistrial were made. On appeal, defendant argues that the judge's curative instructions improperly bolstered the State's proofs and were insufficient to cure prosecutorial misconduct. Furthermore, defendant argues that the trial judge erred by denying the various mistrial motions. These issues developed as follows.

In opening to the jury, defense counsel contended that the charges were "very serious," the jury acted as the "conscience of the community," and there would be no evidence that the drugs were "sold." The judge provided an immediate curative instruction that carefully advised the jury that the case was important to both sides, they were judges of the facts and not anyone's conscience, and the case was about distribution, not selling. At the first available opportunity, defendant moved for a mistrial.

In defense counsel's summation, counsel argued that the jury could consider, as a "missing piece of evidence," the fact that the drug buyers were not arrested and did not testify. Defense counsel further asserted that the jury should acquit if the officers' testimony gave rise to a "doubt." The judge clarified, instructing that "[i]f the police had arrested a buyer, the buyer would be a defendant in this case. Whether that person testifies or not is beyond my ability to tell you. And, certainly beyond [defense counsel's] ability to tell you that as well." The judge also clarified the definition of reasonable doubt for the jury, explaining that "reasonable doubt is not all doubt."

During the prosecutor's summation, the State argued that

"the whole point of using a juvenile, the whole point of working in tandem with a juvenile is [to] let the juvenile take the weight." The prosecutor also attempted to imply that it was defendant who supplied the drugs to the juvenile and did not care about the juvenile or take him "under his wing." Furthermore, the prosecutor suggested that parts of defense counsel's closing argument were "verbal judo."

Immediately after the prosecutor's remarks, Judge Nelson told the jury that "what the attorneys say during their summations, that's not evidence." Judge Nelson further explained that if they did not recall any evidence supporting the remarks, "[t]hat's arguing facts that are not in evidence and, . . . [i]f it's not part of the evidence, you can't consider it." The judge also told the jury that the "verbal judo" comments were not intended to disparage the defense and the jury should focus on the merits of the dispute. Despite the curative instructions, defendant moved for a mistrial based on the prosecutor's misconduct and the judge's curative instructions regarding defense counsel's summation.

In our opinion, it was neither unfair nor beyond the inferences that could reasonably be drawn from the evidence for the prosecutor to argue the juvenile was willing to testify because he had already received a lenient sentence and could not be prosecuted further for his role in the drug transactions at issue. Even assuming impropriety, the remarks were not so egregious as to deprive defendant of a fair trial. State v. Pennington, 119 N.J. 547, 566 (1990). The prosecutor's comments were insufficient to cause a "manifest injustice," R. 3:20-1, especially because of the curative instruction, which was timely provided by the judge.

In fact, all of the curative instructions, given by the judge and objected to by defendant, were timely, accurate, and even-handed. The judge had advised the jury at the beginning of the trial that "[i]f it appears that the attorneys are irritating me. Sometimes we refer to it as pissing me off, disregard it. Their job is to represent their clients. . . If they piss me off and it bothers you as judges of the facts, that's not a fact."

The instructions, objected to by defendant, were designed to eliminate any possible confusion by the jury as to its function and role and to ensure that the attorneys employed only acceptable adversarial tactics. As an appellate court, we defer to the trial court's "feel of the case" and its sense that these instructions were needed at the time. State v. Winter, 96 N.J. 640, 647 (1984). Our review of the record leads us to conclude that we cannot find that Judge Nelson abused his discretion when he denied defendant's motions for mistrial based on the alleged prosecutorial misconduct and the judge's curative instructions. See State v. Labrutto, 114 N.J. 187, 207 (1989).

Regarding defendant's arguments pertaining to the sentence, we agree, and the State concedes, that the third-degree school zone conviction must merge with the second-degree public facility conviction involving the same drugs. C.f., State v. Dillihay, 127 N.J. 42, 55 (1992); State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000). Accordingly, we remand for re-sentencing pursuant to Dillihay and Parker so that indictment counts four and eight may be merged into counts five and nine, with the mandatory minimum for the third-degree offense surviving the merger, Parker, supra, 335 N.J. Super. at 420, 426, and the statutory fees and penalties adjusted as required. Although defendant argues that Judge Nelson violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), by imposing a five-year sentence for the third-degree crimes, we disagree. First of all, the five-year sentences were all concurrent with the seven-year sentence imposed for the second-degree crime, for which Blakely, or for that matter State v. Natale, 184 N.J. 458 (2005), are inapplicable. In addition, under this line of cases a judge may consider defendant's prior convictions to impose a sentence greater than that allowed by a jury verdict. Blakely, supra, 542 U.S. at ___, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412; Natale, supra, 184 N.J. at 481-82. Here, the five-year term was imposed because of defendant's prior record, rendering Blakely and Natale uncontrolling.

All of defendant's remaining arguments are without sufficient merit to warrant further discussion in this decision. R. 2:11-3(e)(2). We affirm defendant's convictions, but remand for re-sentencing in accordance with this decision.

 
Affirmed and remanded.

Defendant phrased each of these points as follows:

Point I: The court erred in denying defendant's motion for a mistrial, on the basis of gratuitous and prejudicial remarks made by the prosecutor during closing arguments.

A. The prosecutor's remarks and innuendo constituted misconduct.

1. The prosecutor inserted facts into his summation which were not in evidence.

2. The prosecutor made derogatory remarks regarding the defense attorney in his summation.

B. In the context of the summation as a whole, the prosecutor's misconduct was so egregious as to deprive the defendant of a fair trial.

Point II: The trial judge provided improper instructions to the jury that incorrectly narrowed the focus of the jury's attention to the State's version of the facts presented at trial.

Point III: The court erred in failing to order the entry of a judgment of acquittal as to all counts in the indictment and therefore violated the defendant's due process rights because the evidence presented at trial was insufficient to warrant a conviction of the crimes charged.

Point IV: The defendant was denied effective assistance of counsel when defense counsel failed to move for a judgment of acquittal to all of the counts in indictment number 02-10-03603 and violated defendant's due process rights because the evidence presented at trial was insufficient to warrant a conviction of the crimes charged.

Point V: The sentencing judge erred because defendant's third degree convictions for possession of cds with intent to distribute within 1,000 feet of a school should have been merged into his second degree convictions for possession of the same cds with intent to distribute within 500 feet of a housing facility.

Point VI: The sentence imposed by the court was improper and excessive because the court applied incorrect aggravating factors and ignored relevant mitigating factors, while failing to provide an explanation for the factors found.

Point VII: Defendant's sentence violated his constitutional rights to trial by jury and due process of law because the court's decision to increase his sentence beyond the statutory maximum, or presumptive term, was based on facts which were not submitted to a jury and proven beyond a reasonable doubt or admitted by the defendant.

(continued)

(continued)

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A-4675-03T4

October 4, 2005