STATE OF NEW JERSEY v. CHAD D. SCHROCK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4565-03T44565-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHAD D. SCHROCK,

Defendant-Appellant.

 

Submitted: March 13, 2006 - Decided:

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment Number 02-08-537.

Yvonne Smith Segars, Public Defender, attorney for appellant (Doreen A. Genua, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (H. John Witman III, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Chad D. Schrock appeals from his conviction on weapons charges and from the sentence imposed. Defendant was charged in Cape May County Indictment Number 02-08-537 with second-degree aggravated assault, by attempting to cause serious bodily injury to Genel McAdams, N.J.S.A. 2C:12-1b(1) (count one); third-degree aggravated assault, by attempting to cause bodily injury to McAdams with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count two); fourth-degree unlawful possession of a weapon, a sharp-bladed tool, under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); and fourth-degree prohibited possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7 (count five).

Originally, defendant had entered a guilty plea to count four under a plea agreement whereby the balance of the charges would be dismissed. However, he was permitted to retract his plea. Thereafter, the charges in counts one through four were tried to a jury. Defendant was acquitted of the aggravated assault charges in counts one and two, but convicted of the weapons charges on counts three and four. The jury was reconvened, and defendant was convicted on the prohibited weapons possession charge contained in count five.

The State's application for imposition of an extended term as a persistent offender was denied. On the third-degree conviction in count four, the court sentenced defendant to a term of imprisonment of five years; the fourth-degree conviction on count three was merged and dismissed; and defendant was sentenced to a concurrent term of eighteen months imprisonment on the fourth-degree conviction on count five. Applicable minimum mandatory fines and penalties were also assessed.

The charges against defendant arose from an incident occurring on June 21, 2002, in Sea Isle City. Danielle Basquill and Genel McAdams, friends who worked for a Philadelphia law firm, were vacationing at a rental house located at 230 South 38th Street in Sea Isle City. On June 20, Basquill and McAdams arrived at the Ocean Drive Club in Sea Isle City at approximately 11:00 p.m.; they remained there until it closed between 2:00 a.m. and 2:30 a.m. on June 21. Upon leaving the Club, Basquill and McAdams walked to Casino Pizza, located at the corner of 40th Street and Landis Avenue, to order pizza pies to bring to their rental home, where other friends were waiting.

Beginning at approximately 10:00 p.m. or 10:30 p.m. on June 20, defendant and his cousin, William Schrock, went to several clubs in Sea Isle City until they closed during the early morning hours of June 21. Thereafter, they also went to Casino Pizza to eat, and arrived there shortly prior to Basquill and McAdams.

Basquill and defendant got into a brief argument inside Casino Pizza. After exchanging words, Basquill threw a slice of pizza at defendant and left the building. McAdams remained inside to pickup the ordered pizza pies, and testified she heard defendant state, "I'm going to get that bitch." McAdams obtained the pizza pies and went outside.

After leaving Casino Pizza, Basquill went to another friend's house, just around the corner on 39th Street, and was sitting on the outside porch of that building with other friends. Basquill testified that, from her vantage point on the porch, she watched McAdams come around the corner with the pizza pies and walk towards the porch. Basquill said she saw defendant following McAdams, approximately eight to ten feet behind her. Basquill related that when McAdams reached the porch, she put down the pizza pies, and turned towards defendant, telling him to leave.

Both Basquill and McAdams testified that defendant said, "I came back for that cunt," stated "I'm gonna cut you, bitch," and that he had pulled out and brandished a knife. They testified that defendant lunged twice at McAdams, who jumped out of the way, and that McAdams had stated, "He's got a knife[,]" asking someone to call 9-1-1.

Basquill stated that at that point she saw a police vehicle driving east on 39th Street, and hailed it down. After speaking with Basquill, the police officer stopped, and then arrested defendant and his cousin as they were walking away. A Leatherman tool with a three-inch knife blade attachment was found in defendant's right front pants' pocket.

The trial was conducted between June 9, and June 11, 2003. The trial judge first conducted a Sands hearing. The State did not have a certified copy of a purported aggravated assault conviction in Bedford County, Pennsylvania, and only had verbal confirmation of convictions in Somerset County. The judge would not permit the prosecutor to use the photocopy, stating in pertinent part:

The defendant is not permitted to say a lie, to perjure himself just because the State is not permitted to use - - and I'm denying the State the right to use this prior conviction photocopy with reference to his prior record. He can't perjure himself. The fact that this judgment . . . cannot come in - - does not invite him to lie about his prior record. He has one. You aren't permitted to ask him on cross about it, but if somehow it comes out he certainly cannot deny it. . . . And I don't expect him to and I don't expect his attorney to go anywhere near that because the defendant is a convicted person. Of that I'm sure. Of what and when and what the sentence was and what these modifications mean, I don't know.

* * * *

So I am, pursuant to Sands and [State v. Brunson, 132 N.J. 377 (1993)], not permitting the State to use these convictions. Reliance on the rap sheet would be unfair. Reliance on this judgment, if that's what it is, is unreasonable, as well. . . .

Sea Isle City Police Officer James Garreffi testified that at approximately 3:12 a.m. on June 21, 2002, he was driving his marked patrol vehicle east on 39th Street in the 100-block when "a female ran out in front of my police car and she was highly upset. She was crying and screaming." Upon exiting his vehicle, the female pointed at defendant stating "that he had a knife and he was trying to slash her friend."

Officer Garreffi stated he drew his weapon and ordered defendant and his cousin to show him their hands and lay on the ground in a prone position. Although the cousin complied, Garreffi testified that defendant "began walking towards me with clenched fists. It was dark out. I couldn't see. I repeatedly ordered him to go down." Officer Garreffi explained he was concerned because he was unable to see whether defendant had a knife in his hand as he approached.

Finally, when Police Sergeant Cook arrived at the scene in his vehicle with his overhead lights and siren on, defendant complied. Officer Garreffi stated that Sergeant Cook searched defendant and found a Leatherman's tool, with a three-inch blade, in defendant's right front pants' pocket.

Referencing his police report, Officer Garreffi stated he had spoken with a male witness, Ralph Tancredi. However, the trial judge precluded, as hearsay, the prosecutor from eliciting any statements made by Tancredi to the Officer. When asked whether he had heard Tancredi say anything at the time he was getting out of his vehicle, drawing his weapon and pointing it in the direction of defendant, Officer Garreffi stated "Not that I remember."

William Schrock, defendant's cousin, testified. He stated that defendant had the Leatherman's tool with him that day for use when they had gone fishing earlier. He described the incident in Casino Pizza in a manner substantially similar to the testimony of Basquill and McAdams, although Schrock stated he was unable to hear exactly what was said.

Schrock stated that after the encounter with Basquill they decided to leave, and walked toward their car on 37th Street and Central Avenue. Schrock testified that as they approached 39th Street, McAdams and defendant got into a verbal argument. Schrock stated that defendant never crossed the street or approached the porch where McAdams was located, although "he might have stepped into the street." When asked what was the closest defendant and McAdams came to each other, Schrock stated:

I don't believe he was that close. She came up and sort of confronted him or walked up to him. . . . I really wasn't overly paying attention to it because . . . it appeared to me that the individual was intoxicated and angry . . . with [defendant] and so I just . . . sensed - - I've been there enough times, you know, doing this with my other friends or my nephew and people are drinking . . . and they're combative. It's best to just avoid the situation.

* * * *

I don't think . . . she came, I'd say within, you know, five feet or so. I wasn't paying that much attention to it other than I just wanted to go up 39th Street.

When asked whether defendant was ever within arm's length of McAdams, Schrock stated, "I did not observe it, no." And, when asked if at any time during the altercation he had seen any type of a weapon in defendant's hand, Schrock stated, "I did - - I did not." Schrock testified he was approximately twenty feet from defendant during the encounter with McAdams. When asked whether defendant had displayed clenched fists when Officer Garreffi had instructed them to get on the ground, or whether defendant had walked towards the officer, Schrock stated that he had not.

At the conclusion of the testimony, defense counsel requested a Clawans charge with respect to the witnesses not called by the State at trial, instructing the jury that they could draw an adverse inference as to whether or not those witnesses would have testified consistently with the other witnesses called by the State. The trial judge denied defendant's application, stating she did "not agree that these are witnesses under the State's control, so clearly that a failure to call them warrants any comment before the jury."

During his summation, defense counsel questioned the credibility of Officer Garreffi concerning his testimony that defendant had walked towards him with a clenched fist instead of heeding the officer's instruction to drop to the ground, asserting:

If that happened, don't you think that would be in the report, that a man who you saw draw a service weapon on and order to the ground comes at you in an aggressive manner with a clenched fist? You don't think that would be in the report if that happened? Don't you think that Sergeant Cook, who apparently was the next officer on the scene, would have been here to testify that that's exactly what happened? Don't you think there would have been a resisting arrest charge? Don't you think there would have been more than a paragraph and one sentence report if you take D-2 as the official report of if D-1 was the official report, one paragraph? Don't you think there would be a lot more in that report if that's the way it happened?

Defense counsel was also highly critical of the failure of the police to take written statements from the various witnesses at the scene of the incident, stating,

[a]nd as a result, you don't have a complete picture, because you heard some of the witnesses testify that were at this event and you didn't hear others. Why didn't you hear others? Because - -

At that point, the prosecutor asked to be heard at sidebar, where he objected to defense counsel referring to absent witnesses. The judge then instructed defense counsel:

I would just remind you the instruction that has been given as far as the missing witnesses. Please don't make any more references to the defendant's liberty.

Notwithstanding his acknowledgment of that instruction, defense counsel stated:

You know from the CAD report and from Officer Garreffi's testimony that there were other people there and yet, again, the police didn't take the time to take those statements back in June when they were all here and so now, a year later, you have to decide the guilt or innocence of my client and you're asked to do so without a complete police investigation, without statements from everyone, without testimony from every angle so that you can determine for yourself what are the essential facts here. All right. . . .

Defense counsel went on to attack the credibility of Basquill, stating:

This is a young lady who is 24 years of age, works in a law firm and, yet, when she's in a pizza place and some jerk tells her she's fat, she goes screaming out of the place, grabbing her cell phone, calling friends, "This guy called me fat." I'm not trying to be mean, but that's the kind of reaction she must have had to this event. Okay, maybe she's sensitive. Frankly, I didn't think she was overweight. She looked like an attractive young lady to me. But she apparently must be very sensitive about her weight.

Okay. But does it justify when some jerk calls you fat to go screaming out of a pizza place, leaving your friend behind, making her shlep the pizzas back to whatever street you're going to and, "You've got to find somebody to help me and tell me that I'm not fat." So much so that she's not going to go to 38th Street where she lives. She's going to go to the nearest place where she can find a home, which is 39th Street.

Basically - - and I know I'm being a little dramatic. I tend to do that. But that's essentially what she said happened. She became so unglued over this, this horrifying event of being called fat, that she had to run out of the pizza place. Why the overreaction? Being a little sensitive about your weight is one thing, but becoming unglued is something else, unless her reactions, of course, are colored by the consumption of alcohol or other substances after partying all night and maybe that added onto it.

Referring to the testimony from the State's witnesses that, as defendant was walking away after the incident, he had made a throwing motion, defense counsel stated:

Is that what happened? Where is this found? In his pocket. Duh. I just committed an aggravated assault and I'm going to neatly refold my machete blade back into its handle and put it back in my pocket so that the cops can come find it on me. Hello? Am I the only one not seeing the logic here? It doesn't make any sense. I'm struggling not to say, "If it doesn't fit, you must acquit." I'm not going to say that. Strike that, Your Honor.

During his closing argument, in responding to the credibility issues raised by defense counsel, the prosecutor stated:

You have the State's witnesses. I submit to you that they have a good memory, good recall of the event. There were no reports that were involved, there were statements that were given, consistent statements.

There was the ability to observe, close proximity. . . . The close proximity was just a couple of feet, face to face. . . .

Responsiveness to questions. The witnesses for the State thought about their answers. They provided responsive answers to the questions that they were given, both on direct and cross-examination.

Substantial corroboration. What was stated, for instance, by witnesses was corroborated, was consistent with the other witnesses. . . .

The prosecutor also attacked the credibility of William Schrock, referring to him as having "[p]oor memory or recall[,]" was "very vague in his recollection of what happened[,]" and that he was "incredibly unresponsive, particularly on cross-examination[,]" with "minimal corroboration of what he said[.]" The prosecutor also stated that "[t]he defense witness is only one person, William Schrock."

In referring to the testimony of Officer Garreffi, the prosecutor stated:

This particular witness, I would submit to you, was relatively disinterested with this in terms of he didn't have a bias one way or the other. He was doing his job. He was providing the type of investigation that he's paid to provide. He was on the scene, he made observations and I submit to you that his observations were credible, believable and accurate. He had a good recall of the event.

After reviewing the testimony of Basquill, the prosecutor stated, "I submit to you that she was a very credible witness." After summarizing the testimony of McAdams, he stated that "[s]he tried to answer the questions to provide reasonable explanations and I submit to you that she was responsive. She was credible, also."

The prosecutor then questioned the reasonableness of the defense presented, stating in pertinent part:

They apparently claim that a threat was made at Casino and they lured the defendant back to their residence. They called the police to the scene. They get the friend to enter into the conspiracy, because you remember the officer testified the friend's version, in terms of witnessing the case, was similar to theirs. They run into the street - - or at least Ms. Basquill does - - acting hysterically as a result of the conduct and inform the police about the existence of the knife and the defendant's conduct. Point out the defendant, have the police immediately stop the defendant, guns drawn - - that's the reaction that happened here - - have the police find a knife in the defendant's pocket and maintain the same story . . . on numerous occasions, effectively, at the time of the complaint being generated, at the time of the statements being given and at the time of the testimony being given yesterday in the course of this trial. Those are the steps necessary to essentially fabricate this story against [defendant] for the heinous reason that he called someone a fat pig.

What are the problems with that type of an analysis? . . . Well, how about the time frame? This whole plan had to be planned . . . and executed in the neighborhood of ten, fifteen minutes in the early hours[.] . . . They couldn't have possibly known . . . that the defendant could have been lured back to the residence? How would they know that he's going to come back to the residence, that the police would respond quickly to the location? Because if he was gone, the plan goes awry. That the friend would be willing to corroborate their version of what happened.

[Emphasis added.]

At that point, defense counsel objected and a sidebar conference was conducted. Defense counsel objected to the prosecutor's improper reference on two occasions to "the friends' version" as corroborating the testimony of the State's witnesses, and asked for a mistrial. When the prosecutor contended that Officer Garreffi had testified that witnesses listed on his report had in fact corroborated the testimony of the State's witnesses, defense counsel stated, "[t]here was no such testimony." The judge then excused the jury, and heard further argument on the mistrial application.

Defense counsel first contended that when the prosecutor had stated that defendant's cousin was the "only" defense witness, he had impermissibly highlighted the fact that defendant had not testified. Secondly, defense counsel argued that the prosecutor had impermissibly informed the jury that there were other witnesses that had corroborated the State's version of the facts. The prosecutor contended his comments to the jury were accurate.

At the court's direction, the court clerk then launched into an elongated search of the audiotape of the proceedings in an effort to locate the relevant testimony and prosecutor's comments. After determining the inaccuracy of the prosecutor's recollection, the trial judge stated, in pertinent part:

It's pretty obvious - - or it is to me - - what needs to be done at this point, although I will certainly consider your application for a mistrial and, at the appropriate time, if there is a conviction and a motion to set aside the jury's verdict, it may form a basis for reconsideration of the decision I'm making now, which is as follows.

I'm satisfied that [the prosecutor's] comment, although probably to some degree harmful because by highlighting the fact that there is only one witness for the defense, obviously, it could lead a jury to draw some negative conclusion about the fact the defendant did not testify, it certainly was far from stated. The difficulty is in giving an instruction to the jury that tells them to disregard that reference without highlighting the suggestion implicit in it.

* * * *

I guess the only way I can give a comparable curative instruction [to that given in State v. Cook, 345 N.J. Super. 480 (App. Div. 2001)] is to tell the jury, "It is the quality of the evidence . . . not the number of witnesses which controls, keep that in mind. The number of witnesses makes absolutely no difference. If it is your determination that one of those individuals and only one is credible or that only one person's statements should be given great weight, so be it, because it is the quality of" - - something along those lines is the only way I can think of to give a curative instruction without further highlighting the defendant's failure to take the stand.

* * * *

Now, the more serious concern that I have is over the statement that the friends corroborated - -

At that point, defense counsel interrupted, asking the court to further focus on the reference by the prosecutor to the number of defense witnesses. After additional discussion, defense counsel asked the court not to give the proposed curative instruction on that point because it would unduly highlight the problem.

Turning to the second issue, the trial judge ruled, as follows:

Clearly, the officer's testimony was that he interviewed other persons on the porch. They did not testify. There was an impermissible reference [by the prosecutor] to them corroborating the . . . statements of the witnesses who did testify. I think two things should occur. And I'm going to ask the two of you because . . . this one is the one I have the greater concern about.

First, I'm going to tell the jury when they come in that that was not the officer's testimony. It was a mistaken summary of the evidence by [the prosecutor]. That they must disregard that evidence and rely solely on their recollection of what the officer said. But I'm also going to ask [the prosecutor] to tell the jury that [he] made an error in [his] summation. I don't want the jury to view one side as opposed to another being favored in this case. It's an error, sir, that you committed. . . . [T]here's no question in my mind, sir, that when you make mistakes it does tend to be an innocent error, as opposed to a willful hope of [gaining] an unfair advantage. But I think that you need to say it, too, because it's kind of a serious error.

After the judge's ruling, defense counsel stated:

[T]hat error by the prosecutor and whatever instruction you give will not cure the fact that I asked for a Clawans charge. Had I known that the prosecutor was going to impermissibly comment on the witnesses who did not testify, I would have certainly been allowed to argue to the jury that the failure of the State to call them would have allowed them to draw an [adverse] inference.

After the jury was brought back into the courtroom, the trial judge apologized for the delay, explained they had listened to portions of the audiotape and then stated:

The bottom line is that [the prosecutor] made a statement during his closing that was not accurate. That statement - - well, the only evidence that has been presented to you regarding the events of that evening came from the mouths of the witnesses who were in court. And he made a mistake in reference to something that the officer said in his testimony. It was a mistake in reference. There was no corroboration by folks who came into the courtroom that - - and he said that. That's not what the officer said. What the officer said was that he interviewed other persons on the porch. And he read that off when he read off his report.

So the only evidence in this case about what happened that night is what you've heard and seen from the witness stand. It was error. Disregard it completely. . . .

Following the jury's verdict, defendant renewed his prior motions and also moved for entry of a judgment of acquittal on the weapons convictions, stating in pertinent part:

In State v. Turner, [ 310 N.J. Super. 423 (App. Div. 1998)], defendant was acquitted of aggravated assault but convicted of possession of a handgun for an unlawful purpose. The court reversed the weapons charge conviction because the acquittal on the aggravated assault charge erased the identification of an unlawful purpose underlying the charge of possession of a weapon for an unlawful purpose. And to do otherwise would have been to permit the Jury to convict on the basis of speculation as to what possible purposes qualify as unlawful.

The trial judge declined to address the motions, stating that because of lateness of the hour, defense counsel should make a formal application and she would consider it on a different date.

At the sentencing hearing, defense counsel orally renewed his motion for a mistrial based on prosecutorial misconduct, and for a judgment of acquittal on the basis of inconsistent verdicts. In denying those motions, the judge stated:

All right. This matter was hard fought, as it were, and the jury verdict was a mixed one, indicating the level of thought that the jury put into their findings and the ultimate verdict that was agreed upon. I'm satisfied, based on that and the actual process of the trial, that nothing untoward occurred. No mistrial should have been granted as a result of the comment made by the prosecutor. In my opinion, it did not, in any way, inappropriately highlight the defendant's exercise of his right to remain silent. In an ideal world, every argument can be made without highlighting any right the defendant is exercising or having any peripherally prejudicial effect as to the defendant. It is not a perfect world. That's not always possible. In this case, ultimately it was my opinion then, as it is now, that the comments were innocent.

The evidence against the defendant, although disputed by the defendant and the one witness who testified, was ultimately found to be credible by the jury. There was no manifest injustice in the denial of a motion for acquittal. The jury's verdict was based on the credible testimony of the victims. Despite the sole witness for the defense being also a credible individual, he was not right up with the defendant at every single second of . . . this incident - - during which this incident evolved. And frankly, I believed all the witnesses that I heard and do believe that the jury's verdict was a fair and a reasonable one. Reasonable persons could certainly agree as to the jury's verdict. The State met its standard of proof beyond a reasonable doubt, in my opinion.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A MISTRIAL BASED UPON PROSECUTOR'S MISCONDUCT IN SUMMATION WAS IN ERROR AND CONSTITUTED A MANIFEST INJUSTICE TO THE DEFENDANT.

POINT II

THE CUMULATIVE EFFECT OF PROSECUTORIAL IMPROPRIETIES WERE SUBSTANTIALLY PREJUDICIAL AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROVIDE THE JURY A CLAWANS CHARGE AT DEFENDANT'S REQUEST PURSUANT TO STATE V. CLAWANS, 38 N.J. 162 (1962), BASED ON THE STATE'S DECISION NOT TO CALL A WITNESS, THEN DURING SUMMATION COMMENT THAT THE WITNESS WOULD HAVE CORROBORATED THE STATE'S WITNESSES' TESTIMONY.

POINT IV

THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL N.O.V.

POINT V

THE TRIAL COURT IMPROPERLY RULED THAT DEFENDANT'S PRIOR CONVICTIONS WOULD BE ALLOWED IN SHOULD DEFENDANT TESTIFY AT TRIAL.

I.

Defendant argues in Points I and II that his convictions should be reversed because he was deprived of his constitutional right to a fair trial based on prosecutorial misconduct. We disagree.

In evaluating the prosecutor's comments in this case, we must examine his role. "Prosecutors occupy a unique position in the criminal justice system and their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). A prosecutor is duty bound to confine his or her comments during summation to the facts revealed during trial and the reasonable inferences to be drawn from that evidence. State v. Ackner, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993). Certainly, not every departure from this requirement mandates reversal. State v. Johnson, 216 N.J. Super. 588, 614 (App. Div. 1987). Additionally, prosecutors are entitled to be forceful in their summations as long as they confine themselves to fair comments on the evidence. State v. Frost, 158 N.J. 76, 82 (1999).

Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. Accordingly, the prosecutor's statements must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958).

In considering whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, an appellate court will consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the [judge] ordered the remarks stricken from the record and instructed the jury to disregard them." 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)(quoting Ramseur, supra, 106 N.J. at 322-23); State v. Bogen, 13 N.J. 137, 141-42, cert. denied sub nom., Lieberman v. State, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953).

Applying these principles to the summation as a whole, we cannot conclude that the prosecutor's closing argument constituted prosecutorial misconduct that was so egregious so as to have prejudiced defendant's right to a fair trial.

As we have noted, in his summation, defense counsel vigorously attacked the credibility of Basquill, McAdams, and Officer Garreffi. We view the prosecutor's comments as fair response to those attacks and, with one exception, based on the testimony in the record. See State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.) (finding nothing improper in responding to attacks by defense counsel on the credibility of the State's witnesses), certif. denied, 151 N.J. 466 (1997); see also State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (holding that a prosecutor may argue that a witness is credible so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support), certif. denied, 184 N.J. 148 (2004).

The initial remarks by the prosecutor in his summation concerning the alleged "friend's version" corroboration of the testimony of Basquill and McAdams was incorrect and defense counsel properly interposed an objection. The trial judge sustained the objection, informed the jurors that the prosecutor had made a mistake, and instructed them to disregard the prosecutor's reference, and that they should only consider testimony given by the witnesses. The judge also found that the prosecutor had simply made an honest mistake in his recollection of Officer Garreffi's testimony. In light of the curative instruction, and viewing the summations as a whole, we cannot conclude that the prosecutor's misstatement had a "palpable impact" on the proceedings or was so egregious so as to deprive defendant of a fair trial, particularly in view of defendant's acquittal of the attempted assault charges. See State v. Harvey, 151 N.J. 117, 144-45 (1997); Roach, supra, 146 N.J. at 219.

We also find no reversible error in the statement by the prosecutor that the key witness for the defense, William Schrock, was "the only witness for the defense." The comment of the prosecutor was made during his discussion of William Shrock's testimony and its contrast with that provided by Basquill and McAdams. Certainly, a prosecutor may not invite an inference of a defendant's guilt from his failure to testify. State v. Josephs, 174 N.J. 44, 126 (2002). However, the context within which that comment was made, coupled with the trial judge's offer to provide a curative instruction; the jury's verdict acquitting defendant of the attempted aggravated assault charges; and our decision below concerning defendant's conviction on count four, leads us to conclude that this remark was not so egregious as to have been capable of depriving defendant of a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999).

II.

Defendant argues in Point IV that the trial judge erred in denying his motion for a judgment of acquittal notwithstanding the jury's verdict. We first note that the trial judge did not rule on defendant's motion for a judgment of acquittal on the weapons convictions, made on the ground that the acquittal finding on both attempted aggravated assault charges had negated the requisite element that defendant had possessed the weapon with the purpose "to use it as a weapon against the person of another," and that he had possessed it "with the conscious objective, design or specific intent to use it against the person of another in an unlawful manner, as charged in the indictment, and not for some other purpose." (Emphasis added).

It appears that the jury was troubled by the issue of "unlawful purpose," because it asked for, and received, that instruction a second time. More specifically, as to that issue, the judge had instructed the jury as follows:

And in this case, the State contends that his unlawful purpose in possessing the weapon was as relates to Genel McAdams and what the State alleges was his conduct towards her on the night in question.

[Emphasis added.]

The judge also instructed the jurors that "you must consider whether the State has proven a specific unlawful purpose charged." (Emphasis added).

As we noted in State v. Turner, 310 N.J. Super. 423, 432 (App. Div. 1998):

Jurors are not qualified to decide, without guidance, which purposes for possessing a gun are lawful under N.J.S.A. 2C:39-4(a) and which are not. . . . For that reason, a jury instruction on a charge of gun possession for an unlawful purpose must include an identification of such unlawful purposes as may be suggested by the evidence plus an instruction that the jury may not convict based on its own notion of the unlawfulness of some other undescribed purpose. . . .

Here, the judge identified the unlawful purpose during his charge as the aggravated assault of Georgia by pointing a firearm at her. This was the only purpose the jury was directed to consider, and it was the identical purpose they were told to consider when deliberating on the assault charge. . . .

[Citations omitted; emphasis added.]

The seminal case in this area is State v. Jenkins, 234 N.J. Super. 311 (App. Div. 1989), where the defendant had been acquitted of the aggravated assault charge, convicted of the lesser-included offense of simple assault, and convicted on weapons charge (unlawful possession and possession for an unlawful purpose). Id. at 313. We found the jury instructions inadequate because, given the acquittal of the aggravated assault charge that was based on the purported discharge of a firearm toward the victim, "[i]t is impossible to say with any assurance what the jury thought was defendant's unlawful purpose." Id. at 315. We explained:

In most cases, a charge of possession with unlawful purpose is coupled with a charge of an act accomplished with a gun -- a robbery, an assault, a homicide -- which the court tells the jury is unlawful. Conviction of such an unlawful act supplies the factual basis for an inference of unlawful purpose in possessing the gun. . . . But, if the possession charge stands alone, or if acquittal of the accompanying charge erases the identification of the unlawful purpose, the court may not permit the jury to convict on the basis of speculation as to what possible purposes qualify as unlawful.

* * * *

A jury is not qualified to say without guidance which purposes for possessing a gun are unlawful under N.J.S.A. 2C:39-4a and which are not. For that reason, because a conviction for a coupled active crime cannot be counted on to supply the unlawful purpose, a jury instruction on a charge of gun possession for unlawful purpose must include an identification of such unlawful purposes as may be suggested by the evidence and an instruction that the jury may not convict based on their own notion of the unlawfulness of some other undescribed purpose.

[Id. at 315-16 (footnote omitted).]

Although the Court in State v. Petties, 139 N.J. 310, 317 (1995), noted that it would be an "overreading of Jenkins" to conclude that every acquittal of the substantive charge involving the use of a gun requires an erasure of the charge of possession for an unlawful purpose, the Court directed that on remand the trial judge instruct the jury "that the criminal purpose or state of mind may 'exist at whatever time the State claims that the possessory offense took place,' and relate the specific unlawful purpose charged to the facts of the case." Petties, supra, 139 N.J. at 321 (quoting State v. Harmon, 104 N.J. 189, 210 (1986); emphasis in original).

In State v. Whittaker, 326 N.J. Super. 252 (App. Div. 1999), the defendant was convicted of possession of a firearm, a revolver, with the purpose to use it unlawfully against victim Livey Sloan, contrary to N.J.S.A. 2C:39-4a. Id. at 256. However, the defendant was acquitted of the charge of aggravated assault upon Livey Sloan with the revolver, contrary to N.J.S.A. 2C:12-1b(2). Ibid. In instructing the jury, the trial judge identified the unlawful purpose in the N.J.S.A. 2C:39-4a charge as the assault upon Livey Sloan with a handgun. Id. at 260. Citing to Turner, supra, 310 N.J. Super. at 434, we reversed the N.J.S.A. 2C:39-4a conviction because this was "the only purpose the jury was instructed to consider on [the N.J.S.A. 2C:39-4a charge], and it was the identical purpose they were instructed to consider when deliberating on the aggravated assault charge[.]" Whittaker, supra, 326 N.J. Super. at 260.

After analyzing the record in light of the written arguments and the charge given, we conclude that because defendant had been acquitted of both attempted aggravated assault charges, and because the trial judge had instructed the jury that, to convict, that they would be required to find that defendant possessed the weapon "to use it against the person of another in an unlawful manner, as charged in the indictment, and not for some other purpose[,]" (emphasis added), the third-degree conviction of defendant on count four of possession of a weapon for an unlawful purpose cannot stand because the jury charge could not have "include[d] an identification of such unlawful purposes as may [have been] suggested by the evidence[.]" Jenkins, supra, 234 N.J. Super. at 316.

However, the acquittal of defendant on the attempted aggravated assault charges does not negate any element of the offenses charged in count three unlawful possession of a weapon under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d or count five prohibited possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. We find no basis for disturbing those convictions.

III.

After analyzing the record in the light of the arguments presented by the parties, we conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The third-degree conviction of defendant on count four for possession of a weapon for an unlawful purpose is reversed and the matter is remanded for entry of a judgment of acquittal on that charge. The remaining convictions are affirmed. In light of these determinations, we remand the matter for resentencing and entry of an amended judgment of conviction.

 
Affirmed in part, reversed in part, and remanded for resentencing. We do not retain jurisdiction.

State v. Sands, 76 N.J. 127 (1978).

State v. Clawans, 38 N.J. 162 (1962).

The fourth-degree conviction of defendant on count three for unlawful possession of a weapon, a sharp-bladed tool, under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d, was merged with the third-degree conviction on count three. In light of our reversal of that latter conviction, the merger is a nullity, and defendant must be resentenced on the conviction on count three.

(continued)

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A-4565-03T4

 

August 15, 2006