STATE OF NEW JERSEY v. IBN HASSAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5551-03T45551-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IBN HASSAN,

Defendant-Appellant.

 

Submitted November 10, 2005 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-04-1286-I.

Yvonne Smith Segars, attorney for appellant (Barbara A. Hedeen, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Ibn Hassan, appeals from his convictions for second-degree reckless manslaughter, second-degree aggravated assault, third-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose. The court sentenced defendant to two consecutive ten-year prison terms with an eighty-five percent period of parole ineligibility. On appeal, defendant raises the following points:

POINT ONE

REPEATED, EGREGIOUS MISCONDUCT BY THE PROSECUTOR DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, 1, 10. (Partially Raised Below).

A. In His Summation And During Cross-Examination, The Prosecutor Referred Explicitly To The Fact That Defendant Was In The Courtroom And Heard All The Testimony Of Other Witnesses, Plainly Suggesting That Defendant Was Thus Able To Tailor His Testimony.

B. In His Summation, The Prosecutor Improperly Shifted The Burden Of Proof To The Defendant By Insinuating That The Defendant Was Guilty Because He Failed To Obtain Witnesses Who Could Corroborate His Account.

C. The Prosecutor Told The Jury In Summation That It Could Only Acquit The Defendant If It Believed The State's Witnesses, Including The Police Officers, Were Lying.

D. The Prosecutor Repeatedly Told The Jury In Summation That Its Job Was To Decide Whether To "Endorse" The Defendant's Actions, That Is, "To Say What He Did Was Okay."

POINT TWO

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO CONSECUTIVE TERMS OF IMPRISONMENT TOTALING TWENTY YEARS WITH 85% PAROLE INELIGIBILITY, IN FAILING TO CONSIDER MITIGATING FACTORS GROUNDED IN THE RECORD, AND IN ORDERING DEFENDANT TO PAY A $1000.00 VCCB PENALTY. THE SENTENCE IMPOSED ALSO VIOLATES PRINCIPLES ESTABLISHED IN BLAKELY V. WASHINGTON.

We have reviewed the record in light of these contentions and the applicable law. Because we find merit to defendant's argument that the prosecutor's summation deprived him of a fair trial, we reverse. Consequently, we do not address defendant's sentencing arguments.

On April 11, 2003, defendant was indicted by an Essex County grand jury, charging him with: first-degree murder of Melvin Porter, N.J.S.A. 2C:11-3a(1)(2) (count one); first-degree attempted murder of Ronald Thomas, N.J.S.A. 2C:11-3 and 2C:5-1 (count two); second-degree aggravated assault of Ronald Thomas, N.J.S.A. 2C:12-1b(1) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Following a trial from January 6, 2004 to January 23, 2004, the jury found defendant guilty of second-degree reckless manslaughter of Melvin Porter, as a lesser-included offense of first-degree murder (count one); second-degree aggravated assault against Ronald Thomas (count three); and both the third-degree and second-degree weapons offenses (counts four and five). The jury acquitted defendant of the attempted murder of Ronald Thomas (count two).

The judge merged count five into count one and imposed the following sentence: on count one, a ten-year term with an eighty-five percent period of parole ineligibility; on count three, a consecutive ten-year term, also with an eighty-five percent period of parole ineligibility; and on count four, a concurrent five-year term.

The following facts are taken from the trial record. In the summer of 2002 Thomas lent his basketball jersey to defendant. On December 10, 2002, Thomas asked defendant about the jersey when he saw him on the street. They exchanged words; according to Thomas, defendant punched him in the face. Defendant claimed Thomas pushed him in the face before he punched him. Defendant ran away.

Later that day, Thomas asked defendant's brother: "Can we get a fair fight?" That evening, defendant received a phone-call from someone who told him that Thomas and another man were armed and looking for him. While defendant testified he "didn't take it as a threat at first," he nevertheless retrieved a loaded .45 caliber handgun.

The next day, December 11, 2002, Thomas told Melvin Porter and Terrance Fritz what had transpired between defendant and him the previous day. He said he was going to fight defendant. Neither Thomas nor Porter was armed.

At about that point, Thomas saw defendant approach. After defendant and Porter exchanged words, defendant fired six or seven shots. Porter was struck in the chest; he died from that wound. As Thomas tried to flee, defendant shot him twice in the right leg. The police recovered three .45 caliber shells. At the hospital, Thomas identified defendant as the assailant.

Defendant claims he fired in self-defense. He testified that as he stepped off the porch of 186 Oakwood Place, he saw Thomas, Porter and Fritz running towards him. Defendant, Porter and Thomas had an argument. As Porter and Thomas backed up, Fritz drew a gun. Defendant then drew his gun and "the gun start[ed] going off." When defendant saw Porter and Thomas on the ground he ran away. He gave the gun he used in the shooting to a man named Dino.

Crystal Boyd observed the confrontation between defendant and Thomas the day prior to the shooting. She also saw the shooting. She saw defendant and the victims meet on the street and heard them talking loudly. Boyd confirmed that defendant shot Porter and Thomas. She did not see anyone but defendant draw a gun.

The following morning, defendant turned himself in to the police. That same day, Fritz identified defendant as the shooter. At trial, however, Fritz denied that he was with the victims at the time of the shooting or that he saw the shooting.

Against this factual background we turn to defendant's allegations of prosecutorial misconduct. A prosecutor's comments can be a ground for reversal if they were "so egregious that [they] deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). To evaluate a misconduct claim, an appellate court considers the tenor of the trial, and the responsiveness of defense counsel and the trial court as the instances of impropriety occurred. State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). The court considers: "(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. Smith, 167 N.J. 158, 182 (2001); State v. Ramseur, 106 N.J. 123, 322-323 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

Counsel's failure to timely object "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made" and "deprives the court of the opportunity to take curative action." 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). In the absence of an objection at trial, to warrant a reversal a defendant must demonstrate that the conduct was sufficient to produce an unjust result. State v. Josephs, 174 N.J. 44, 124-25 (2002); R. 2:10-2.

Here, defendant first claims a new trial is warranted based on the prosecutor's argument to the jury that defendant's presence in the courtroom and ability to hear the testimony of the witnesses allowed him to tailor his testimony. No objection was made at the time.

In State v. Daniels, 182 N.J. 80, 98 (2004), the Court differentiated between two types of prosecutorial accusations of tailoring: specific and generic. An allegation of tailoring is specific when there is identifiable evidence in the record that supports such an inference. Ibid. When the accusations of tailoring are specific, a prosecutor may comment based on "the evidence in the record and the reasonable inferences drawn therefrom." Id. at 98-99. When the prosecutor, in the absence of a specific evidentiary basis showing that a defendant has tailored his testimony, nonetheless attacks the defendant's credibility by drawing the jury's attention to the defendant's presence during trial and his concomitant opportunity to tailor his testimony, generic accusations have occurred. Ibid. Generic accusations of tailoring during summation are prohibited. Ibid. A prosecutor may not explicitly refer to a defendant's presence in the courtroom, or that defendant heard the testimony of the other witnesses, and thus was able to tailor his testimony. Id. at 99.

The same applies to cross-examination by the State. Ibid. A prosecutor must have "'reasonable grounds' for posing questions that impugn a witness's credibility," and "if there is evidence in the record that a defendant tailored his testimony, the prosecutor may cross-examine the defendant based on that evidence." Ibid. The prosecutor is barred, however, from referencing the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses. Ibid.

Here, defendant argues that certain comments the prosecutor made during summation were improper. These comments were:

That's his own testimony.

He's tried to change it and did, in fact, change it as he perceived that maybe things weren't going so well for him during testimony.

. . . .

Ladies and gentlemen, you've got exhibits before you. I believe they're S-1 and S-2. They're important. They're important for the location where things were. They're important because they don't back [the defendant's] story.

Remember, if you listen to his testimony, he knows. You know he knows what the State said. He knows the exhibit. What he does, I submit to you, is just try to take the edge off.

[emphasis added.]

Defendant also argues that the following questions posed to him by the prosecutor on cross-examination were improper.

Prosecutor: And you, of course, had the opportunity, as is your right, to be in court during the entire trial, and you've heard all the testimony given by all the witnesses?

Defendant: Yes.

Prosecutor: You made notes on that?

Defendant: No, mental notes.

When we view the testimony elicited by the State on cross-examination, along with the highlighted portions of the State's summation, we are satisfied that the Daniels prohibitions were violated. While a prosecutor may highlight that a defendant's version of the events conformed with that of other witnesses when the defendant found it to be convenient, the State is specifically precluded from "highlight[ing] . . . that defendant was able to 'sit' in the courtroom during trial, enabling him to 'listen[]' to other witnesses testify" and then "urg[ing] the jury to infer that defendant thus 'craft[ed] his version.'" Id. at 101. Here, the prosecutor went beyond merely highlighting that defendant's version of the events conformed to that of other witnesses when convenient for him. The prosecutor commented in his summation that defendant altered his testimony when "he perceived . . . things weren't going so well for him during testimony." Then, the prosecutor remarked that "if you listen to his testimony, he knows. You know he knows what the State said. He knows the exhibit. What he does, I submit to you, is just try to take the edge off." And, the above-noted questions on cross-examination highlighted that defendant tailored his testimony after hearing the other witnesses.

Defendant's self-defense claim hinged on his credibility. These Daniels's violations were clearly capable of producing an unjust result. R. 2:10-2.

The State claims the trial court's charge to the jury on credibility cured any harmful effects of the prosecutor's comments. We disagree. The generic instruction on the jury's obligation to differentiate between argument and evidence was insufficient. The Daniels Court noted that to counter what counsel may have said about tailoring during closing arguments, the jury needed to be told that: "Any arguments, statements, remarks in the opening or summations of counsel are not evidence and must not be treated by you as evidence." Daniels, supra, 182 N.J. at 101. Here, the court did not give that instruction, or the model charge concerning the jury's function, which states, in part:

Arguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence. Although the attorneys may point out what they think important in this case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial. . . . Any comments by counsel are not controlling.

[Model Jury Charge (Criminal), "Criminal Final Charge Function of the Jury," (2002).]

The judge also failed to directly mention the prosecutor's inappropriate accusations of tailoring. To cure the prosecutor's improper comments, the charge needed to reference those accusations. See id. at 102. It did not.

We next turn to defendant's second allegation of prosecutorial misconduct; that the State shifted the burden of proof to defendant by implying that if he were telling the truth, he would have produced witnesses to corroborate his story. The comment in question was:

Stop and think what [defendant has] told you. He had a dispute. He ran away. So he went . . . to Newark. He was in a store . . . . Then he went bowling . . . in Irvington; he doesn't recall. Got a phone call from somebody. We don't know who called. You only have his word for this. You only have his word for it. Thereafter, you have guns. What does he do? Continues bowling, goes out to dinner, then winds up getting a gun.

Now, you have to assess how open witnesses have been with you. How open has [defendant] been with you? Wouldn't tell you who he got the gun from; wouldn't tell you where he got it from; wouldn't tell you where he went; I'd rather not discuss that.

[emphasis added.]

Defense counsel did not object.

A defendant has no obligation to offer affirmative evidence on his or her own behalf, and a prosecutor's remarks to the jury implying such a failure are impermissible. State v. Jones, 364 N.J. Super. 376, 382-83 (App. Div. 2003). While there are instances where a prosecutor's improper comments in this regard may not result in the reversal of a defendant's conviction, State v. Jenkins, 349 N.J. Super. 464, 479 (App. Div.), certif. denied, 174 N.J. 43 (2002), "there are other instances, however, where the offending remarks cannot be disregarded." Jones, supra, 364 N.J. Super. at 383; see also Frost, supra, 158 N.J. at 87 (impact of violating defendant's right to fair trial "cannot be measured by, or weighed against, the quantum of evidence bearing upon his or her guilt").

Here, the prosecutor was within his bounds when he asked the jury to assess how open defendant was in his testimony. The prosecutor crossed the line into improper comment, however, when he suggested that the jury should not believe defendant's statement that he received a phone call, because "you only have his word for this. You only have his word for it." That statement was obviously a reference to the lack of corroborating evidence to support defendant's statement. It implied that defendant should have produced evidence to support his statement. This remark, when considered with the Daniels violations as we previously discussed, compromised defendant's right to a fair trial.

Defendant next argues that the prosecutor shifted the burden of proof to him by telling the jury during summation that it "would have to find that all the State's witnesses 'are lying' in order to acquit." The relevant portions of the prosecutor's summation are:

You're going to be called upon to assess the credibility of witnesses, to determine what happened back on December of 2002 on Oakwood Place. It is going to be your job to decide whether or not you want to endorse, by your verdict, the actions of [defendant], to say that, yes, what he did was permissible; that he had a right to kill a human being, Melvin Porter; that he had a right to shoot Ronnie Thomas twice in the leg. That's what you're being called upon to decide in assessing the defense of self-defense.

[Defendant] has told you he killed a man, and he seriously wounded another; that he did it with a .45 caliber weapon. He's telling you it's okay.

That, in essence, is what he is doing by alleging the defense of self-defense. And I submit to you, ladies and gentlemen for you to believe [defendant], for you to endorse his position, for you to say its okay, [defendant], you have to believe that everyone in this trial who's spoke to you factually - as opposed to some of the experts - except [defendant] is lying. Everybody at the scene, whether or not they had an interest in the case or not, is lying or misleading you.

The police are playing fast and loose and lying to you. You have to believe that all those people are lying, and you have to accept the truth of what this man, who killed another man and wounded another man, says.

You have to assess credibility. The judge is going to give you some instructions on credibility, and as the judge of the law, [the judge's] rulings, of course, control.

My purpose in coming before you today is to point out certain areas of testimony, to help assist you in deciding whether or not [defendant] should be convicted, or whether you should endorse his actions. When you assess a person's credibility, ladies and gentlemen, the same test of the credibility applies to the State's witnesses applies to [defendant]. He has no burden of proof. Once having taken the stand and placed himself before you and sworn or affirmed to tell the truth, you judge, and you are to judge him by the same standards as apply to other people.

[emphasis added.]

The prosecutor's highlighted remarks exceeded permissible forceful advocacy. His statements were misleading. By telling the jury that to acquit defendant of the charges it was required to believe that everyone lied except defendant, the State imparted to the jury an incorrect standard of proof. It was the State's burden to prove that defendant was guilty beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Medina, 147 N.J. 43, 49 (1996) (State has burden to prove each element of offense beyond a reasonable doubt), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 827 (1997). To find that the State did not meet its burden, the jury did not have to find all of the witnesses except defendant were liars. To acquit defendant, the jury merely had to conclude there was reasonable doubt whether defendant committed the charged offenses. The State's remarks were therefore misleading and diverted the jurors' attention from their legal obligation.

Finally, we turn to whether the prosecutor's use of the word "endorse" was misleading, and if it was, whether it was cured by the court's instruction to the jury. During the course of his closing, the prosecutor repeatedly told the jury that if it accepted defendant's self-defense position, it would be "endorsing" his actions. The prosecutor said:

It is going to be your job to decide whether or not you want to endorse, by your verdict, the actions of [defendant], to say that, yes, what he did was permissible; that he had a right to kill a human being, Melvin Porter; that he had a right to shoot Ronnie Thomas twice in the leg. That's what you're being called upon to decide in assessing the defense of self-defense.

. . . .

That, in essence, is what he is doing by alleging the defense of self-defense. And I submit to you, ladies and gentlemen, for you to believe [defendant], for you to endorse his position, for you to say its okay, [defendant], you have to believe that everyone in this trial who's spoke to you factually - as opposed to some of the experts - except [defendant] is lying. Everybody at the scene, whether or not they had an interest in the case or not, is lying or misleading you.

My purpose in coming before you today is to point out certain areas of testimony, to help assist you in deciding whether or not [the defendant] should be convicted, or whether you should endorse his actions.

Ladies and gentlemen, the actions I've described . . . I most respectfully submit are not the actions of a reasonable man. They are not the type of actions that you as jurors should endorse as being the legally justified standard for avoiding responsibility to the taking of a human life.

. . . .

[The judge] is going to charge you on the law. And in the course of the charge you're going to be advised as to the charge of murder, which the State submits the proofs justify as against [defendant]. But you are the judges of the facts, and while you may find that in your hearts you do not wish to endorse the actions of [defendant] to say what he did was okay . . . .

[emphasis added.]

After an objection, the trial judge gave the following curative instruction:

[T]here was a comment which I did not explain that indicated that if you believed -- back up. The comment was, if you endorse this action, then you would find a particular way. I simply want to say that the term "endorse" in this case wasn't said to you harmfully, but you can - you have to follow the law.

You could agree or disagree with someone as long as you follow the law. So whether you endorse or you don't endorse whatever it is, you are required to follow the law, and I believe that was told to you anyway. . . .

Defense counsel objected to the curative instruction because the judge did not "specifically tell [the jury] that it applies to a defense of self-defense." The court declined to issue any further instruction.

On appeal, defendant argues that the prosecutor's use of the word "endorse" diverted the jury's attention from the correct statement of its obligation - to determine whether the State had proved defendant's guilt beyond a reasonable doubt. Defendant also argues that the prosecutor's comments amounted to a misstatement of the law applicable to the defense of self-defense.

Prosecutors are prohibited from making remarks that distract jurors from a dispassionate evaluation of the evidence before them. See State v. Reddish, 181 N.J. 553, 645 (2004) (court properly precluded use of the words "murder" and "kill" to describe the imposition of the death penalty); State v. Williams, 113 N.J. 393, 448, 451-53 (1988) (improper comments as to victim's background and future plans made solely to inflame the jury and elicit passion); State v. Rose, 112 N.J. 454, 521 (1988) (prosecutor improperly diverted jury's attention from the facts by urging the jury to "send a message" to the community).

Here, the issue is whether the prosecutor's use of the word "endorse" had the capacity to improperly divert the jury's attention from the facts of the case. We agree with defendant that the jury was not required to "endorse" his actions to acquit him of the charges. Endorse means "to give approval to; support; sanction." Webster's New World Dictionary 449 (3d College ed. 1988). The jury was required to do none of those things to acquit defendant. All the jury needed to find to acquit defendant was that the State failed to prove defendant was guilty of the charges beyond a reasonable doubt.

Nor did the judge's charge, in our opinion, cure the harm done by the prosecutor's statements. While the judge told the jury that it was required to follow the law, regardless of whether it "endorsed" defendant's actions, that was simply insufficient. The jury was never told that it could find that defendant acted in self-defense without endorsing defendant's actions.

 
Reversed.

(continued)

(continued)

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A-5551-03T4

November 28, 2005