STATE OF NEW JERSEY v. VINCENT L. PATRICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5770-03T45770-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT L. PATRICK,

Defendant-Appellant.

________________________________

 

Submitted October 11, 2005 - Decided March 21, 2006

Before Judges Axelrad and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 03-09-0438.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Jason D. Witcher, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant was convicted on February 4, 2004 of third-degree possession of a controlled dangerous substance (cocaine) in violation of N.J.S.A. 2C:35-10(a)(1)(count one) and third-degree possession of a controlled dangerous substance with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1)(count two). On March 16, 2004, the court merged count one into count two, granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f), and sentenced defendant as a persistent offender to seven years with three years of parole ineligibility.

The facts upon which defendant's convictions were based were established by the State, as defendant did not testify or call witnesses. On December 4, 2002, investigators from the Salem County Prosecutor's Narcotics Division executed a search warrant at 44 Union Street, Salem City. Three men, Phillip Saunders, Nakia Robinson and defendant, were in the driveway as the investigators approached. Investigator John Pelura saw defendant run inside the house through a side door while Saunders ran toward the back of the house. Robinson, who did not run, was arrested and Saunders was chased and arrested. Investigator Pelura then entered the house in pursuit of defendant and found a black pouch containing fifty-two small bags of suspected narcotics on a shelf.

Investigator Stephen Dick also entered the house through the side door and went through a dining area into a kitchen. Finding no one in the kitchen, he returned to the dining area and saw a door close. He went through that door and found defendant standing in the shower fully clothed. Investigator Dick ordered defendant down to the ground and called for Investigator Pelura to come and handcuff him. Investigator Dick then noticed that the toilet tank lid was cracked and ajar. He lifted it and found a wet paper bag with eleven smaller bags inside containing white powder. The bag was found floating on top of the water and it was not completely soaked.

After being read his Miranda rights, defendant maintained that he had gone into the bathroom to relieve himself and, after doing so, had flushed the toilet. Investigator Pelura testified, however, that he did not remember the toilet running. Defendant also denied placing the paper bag in the toilet tank.

On appeal, defendant challenges a variety of opening and closing remarks by the prosecutor, as well as jury instructions in connection with those remarks, claiming that he was denied a fair trial. In addition, he contends that his sentence was excessive. We disagree and affirm.

Defendant first challenges remarks that he claims constituted "improper vouching." Defendant cites the conclusion of the prosecutor's opening statement:

We're gonna prove that this defendant ran when the cops came to avoid being caught. We're gonna prove that he put those drugs in the toilet. We're gonna prove that he possessed those drugs in that toilet and on that shelf. And we're gonna prove that he was planning to sell those drugs.

At the conclusion of this case, you'll have the opportunity to weigh the testimony, weigh the credibility of the witnesses. Think about what makes sense. Think about what makes sense, what jives with your common, every day experiences.

Ask yourself, as the trial proceeds, why did this defendant run? Why did he hide in the shower to avoid the police? Why was there an unsoaked paper bag in the toilet next to him? Why was there a black pouch of narcotics, cocaine, sitting just inside the side door on the shelf? Was he planning to sell those drugs?

A trial, citizens, is a search for the truth. The truth in this case is that this defendant . . . is guilty of possessing cocaine with the intent to sell it. That is the truth. That is the whole truth and nothing but the truth.

The State's gonna prove that to you. And we're gonna prove that beyond a reasonable doubt.

Defendant also cites the following statement made by the prosecutor during summation:

The only thing left to do to complete this picture is for you to put a frame on it and hang it on the wall. The way you do that is by going back to the deliberation room, individually and collectively looking at the evidence, utilizing your common sense, and returning the only verdict that is proper. That verdict is Mr. Patrick was attempting to sell those drugs. That, ladies and gentlemen, is the truth, the whole truth, and nothing but the truth.

In addition, defendant complains the prosecutor was testifying and vouching for the State when he stated:

Well I know one thing is for sure. When you put a paper bag in water, it gets wet, and it gets wet pretty quick. And the reason why this bag wasn't too wet was because [defendant] had just ran [sic] in there and dumped it in there. That's why it wasn't wet yet.

The second category of challenged comments is alleged misstatements of fact. Defendant points to the prosecutor's closing argument in which he stated: "Mr. Patrick had some cocaine on his person and the rest, the set stash, was kept inside the doorway, like any other store." Defendant further notes that the prosecutor also stated: "Fifty-two bags of cocaine were stocked, packaged and ready for sale. There was a drive-thru cocaine window and Mr. Patrick was serving up the product." Defendant maintains these remarks were "grossly false and prejudicial statement[s]" because no drugs were found on defendant's person, there was no evidence of a drive-thru window and there was no evidence defendant was selling drugs.

In the same vein, defendant further finds fault with the prosecutor's use of the term "marijuana" in his comment that defendant's contention that he ran because he had a small amount of marijuana in his pocket was not persuasive on its face. Defendant argues that the comment was improper because the green vegetation found on defendant was never identified as marijuana. Defendant also maintains that there was no evidence to support the prosecutor's argument that defendant knocked the toilet tank lid over and cracked it in his rush to get away.

The final category of challenged comments are alleged statements of opinion by the prosecutor. In that regard, defendant complains of the prosecutor's closing statement responding to defense counsel's remark that a hair found in the paper bag of drugs was never tested. The prosecutor said:

He brought up this issue of DNA testing. And we're going to talk about this hair in a minute.

Now, I'm a Prosecutor and I'm also a Law and Order fanatic. In all the episodes of Law and Order I've ever seen, I have never seen them do a DNA test on the hair in a drug case.

This isn't homicide. If they don't do it on television, what sense would it be to test a hair in a drug case when you have a defendant with a toilet bowl full of drugs standing right next to it. And let's talk about the hair, and I'm not going to pull it out because there's only one strand in here. But I'll submit to you that it is a human hair.

Let's talk about this Nakia Robinson, who it seems that my counsel wants to allege this hair may well belong to. Take a look at Mr. Patrick's hair. Braided. If it's braided, it's obviously pretty long. Now, take a look at Mr. Robinson's hair. His hair is about the length of my hair. Now, when you look inside that envelope, you're going to see a hair. And I guarantee you the hair you find will not be this short. It will be more consistent with the hair on Mr. Patrick's head.

Defendant objects to the prosecutor attempting to convince the jury that the lack of DNA testing on a popular television show is a basis for concluding that there was no reason to do DNA testing in this case. He also objects to the prosecutor, without expert testimony, comparing the length of the hair in evidence with the length of Robinson's hair and defendant's hair.

Defendant notes that his trial counsel objected to several of the prosecutor's comments, including the prosecutor's hair comparisons, his allegation that defendant had cocaine on his person, the remark about defendant serving cocaine through a drive-thru window, his assertion that defendant broke the toilet lid in a rush to escape, his reference to marijuana, and his statement that defendant chose to sell cocaine.

The trial judge concluded that the prosecutor's comments about the toilet, the marijuana and the drive-thru window were fair comment. He also found that the hair comparison was not objectionable because the prosecutor compared the hair in the bag to Robinson's hair as depicted in a photograph of Robinson on the driver's license in evidence. However, he determined that a curative instruction to the jury was required to correct the prosecutor's statement that defendant had cocaine on his person. We conclude that defendant was not deprived of a fair trial by the prosecutor's opening or closing statements. We recognize that a prosecutor is "duty bound to confine his comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence," State v. Ackner, 265 N.J.Super. 351, 357 (App. Div. 1993), certif. denied, 134 N.J. 485 (1993) and that a prosecutor "may not declare his personal belief in a defendant's guilt in such a manner as to lead the jury to believe that his opinion is based on something other than the evidence adduced at trial." State v. Ramseur, 106 N.J. 123, 321 (1987). However, "[p]rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." Id. at 322. Furthermore, "[i]n determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered remarks stricken from the record and instructed the jury to disregard them." Id. at 322-23.

Initially, we note no objection was made to the prosecutor's opening and closing assertions that the "truth" was defendant was guilty of possessing cocaine with the intent to sell it. Therefore, this court is to use the plain error rule in considering defendant's objections to those assertions. State v. Muhammad, 359 N.J. Super. 361, 372 (App. Div. 2003). "The test for plain error is whether under the circumstances . . . the error possessed a clear capacity for producing an unjust result." State v. Melvin, 65 N.J. 1, 18, 319 A.2d 450 (1974). See R. 2:10-2. Stated another way, in the absence of a timely and proper objection, ordinarily an appellate court may only upset a verdict if prejudice to defendant is apparent. State v. Bogen, 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953).

Here, prejudice to defendant is not apparent. Viewing the prosecutor's statements in their entirety, it is clear that, in his opening, the prosecutor was simply adding emphasis to his assertion of what the State would prove, while, in closing, he was urging the jury to conclude, based upon the evidence, that the State had proven a specific crime. Furthermore, we agree with the trial judge that the prosecutor's closing comment that a paper bag quickly gets wet if put in a toilet tank was fair comment based upon the evidence.

We also conclude that the prosecutor's comment that defendant "had some cocaine on his person" was fair comment based upon the evidence. "A prosecutor may comment on the facts shown by or reasonably to be inferred by the evidence." State v. Carter, 91 N.J. 86, 125 (1982). Here, the prosecutor's comment that defendant had cocaine on his person was a statement of the State's position based upon logical inferences that could be drawn from the evidence. It was the State's position that defendant ran from the police into the bathroom, dumped the drugs into the toilet tank and attempted to hide, fully clothed, in the shower. The State's direct evidence established that defendant ran into the house and immediately thereafter was discovered standing fully clothed in the shower, the nearby toilet tank lid was cracked and ajar and inside the tank was a wet paper bag with eleven smaller bags inside containing white powder later determined to be cocaine. Clearly, a logical inference to be drawn from that evidence is, as the State contended, that defendant had the cocaine on his person and dumped it into the toilet tank. Therefore, the prosecutor's comment was fair, notwithstanding the lack of direct evidence of cocaine being on the person of defendant.

We also agree with the trial judge that the prosecutor's mention of marijuana in his closing statement was fair comment, notwithstanding the fact that the green vegetation found on defendant was never determined to be marijuana. In fact, it was defendant's counsel who first mentioned marijuana before the jury. That occurred during his cross-examination of the State's expert witness when defendant's counsel sought to bring out that defendant may have run from police because he had a small amount of marijuana in his pocket. Clearly, having used the term "marijuana" first, defendant's counsel cannot later complain of the prosecutor's use of the same term in the same context.

In addition, we find no undue prejudice to defendant from the prosecutor's remarks about a drive-thru window, DNA testing on a popular television show and the length of a strand of hair found in the bag containing drugs. The lack of evidential value of these comments was obvious and the drive-thru window comment was clearly not meant to be taken literally. Moreover, the court's instruction to the jury to disregard opinions of attorneys because their opinions were not evidence, prevented misunderstandings about the weight to be given to any remarks that could have been perceived to be opinions of the prosecutor.

We also find defendant's challenge to the judge's charge to be baseless. Defendant's objections to the judge's charge are complaints that the judge did not properly cure the alleged prejudicial statements by the prosecutor. However, there is no dispute that defendant's trial counsel made no objection to the charge. The judge instructed the jury that the State had the burden of proving beyond a reasonable doubt that defendant possessed cocaine. He explained the difference between actual and constructive possession and stated:

I'm not going to comment on the testimony, but if it was suggested to you that at a particular time there was possession actually in - by [defendant], that would be for you to determine after you have determined the facts in the case. We're talking about cocaine now, not about any green vegetation or marijuana or anything of that sort. So that's actual possession.

The judge then explained joint possession and stated:

What was said about [defendant] having something in his possession - cocaine in his possession - of course, you should consider, but you should consider it in the light of what I said in terms of actual possession, constructive possession or joint possession, and the definitions that I gave you.

The judge further advised the jury that a lawyer's opinion is not evidence and should be disregarded. The judge concluded: "It's your opinion. It's your findings. It's your determination of the credibility of the witnesses. It's your determination of what logical inferences to draw, if any, that would control this case." The judge then asked whether there was any objection to the charge. Both the prosecutor and defendant's counsel responded in the negative.

Moreover, the judge accurately charged the jury on circumstantial evidence as well as actual, constructive and joint possession, including the instruction that "[a] person may possess cocaine, or anything else, even though it was not physically on his person at the time of his arrest, if he had, in fact, at some time prior to his arrest had control and dominion over it." In light of the evidence, these charges clearly provided the jury with the information necessary to understand the prosecutor's comment as an argument that it should draw the inference that defendant possessed cocaine on his person moments before his arrest. For this additional reason, the prosecutor's comment was not inappropriately prejudicial to defendant.

Finally, we find no merit to defendant's argument that the court erred in sentencing him, and that his sentence to an extended term was excessive. While defendant lists a litany of alleged errors, he offers no support that any should result in a modification of the sentence. The judge found three aggravating factors, the risk that defendant would commit another offense, the extent of his prior criminal record and the seriousness of the offenses of which he had been convicted, and the need to deter defendant and others from violating the law. He found no mitigating factors. When a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Jabbour, 118 N.J. 1, 6 (1990). We find no basis upon which to challenge the judge's conclusions concerning aggravating and mitigating factors.

Defendant was sentenced to an extended term based on findings that he was a persistent offender under N.J.S.A. 2C:43-6(f), having been previously convicted of possession with intent to distribute a controlled dangerous substance, and that he had five prior convictions for indictable offenses. Although defendant, pursuant to N.J.S.A. 2C:43-7a(4) and N.J.S.A. 2C:43-6(f), could have been sentenced to a maximum of ten years with a five-year period of parole ineligibility, the court determined to impose a sentence in the middle of the range, in view of defendant's guilty pleas, which, the court found, indicated some remorse. Therefore, the judge sentenced defendant to seven years with a three-year period of parole ineligibility. We find no abuse of discretion and no error of law.

 
Affirmed.

(continued)

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A-5770-03T4

March 21, 2006