STATE OF NEW JERSEY v. MACK CHARLES SHEPARD, a/k/a MACK C. BRANDON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6070-05T46070-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MACK CHARLES SHEPARD, a/k/a MACK C.

BRANDON,

Defendant-Appellant.

_______________________________________

 

Submitted June 3, 2008 - Decided

Before Judges Grall and Chambers.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 04-08-1022.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent

(Lisa M. Dudzinski, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Mack Charles Shepard appeals from a final judgment of conviction and sentence. Although defendant did not object to the jury instruction, which did not adequately address his evidence of alibi, its relevance to proof beyond a reasonable doubt or improper argument presented by the prosecutor, we cannot conclude that the errors were harmless. R. 2:10-2. Accordingly, we reverse and remand for a new trial.

Defendant was named in an indictment charging him and his codefendants, Jihaad Spearman and F.R., but he was tried alone. The jury found defendant guilty of third-degree distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5a(1); third-degree possession of heroin, N.J.S.A. 2C:35-5a(1); and third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3). Based on defendant's prior conviction for possession of a controlled dangerous substance with intent to distribute, the trial court granted the State's application to sentence him to a mandatory extended term and period of parole ineligibility in accordance with N.J.S.A. 2C:43-6f. Thus, after merging count five into count six, the court imposed concurrent ten-year terms of incarceration, five years to be served without possibility of parole. The court also imposed a $150 VCCB assessment, a $150 lab fee, a $3000 DEDR penalty, a $225 SNSF assessment and a $30 LEOTEF penalty. This appeal followed.

In an effort to respond to citizen complaints about drug activity in the Oakwood Park Plaza area of the City of Elizabeth, at 7:30 p.m. on the evening of April 10, 2004, Officer Panuthos, his partner and his sergeant, all of the Elizabeth Police Department, conducted a surveillance. There was no evidence that suggested the officers had information about defendant's or his codefendants' involvement in drug trade. The officers selected an observation point in a vacant third-floor apartment that gave them a clear and unobstructed view of the streets and sidewalks below. The nearby trees were still leafless, and the officers used binoculars. Although it was dark, the area was well-lit. Officers Geddes, Deabreu and Garcia, were positioned at different locations, within blocks of the site, and were assigned to assist the surveillance team on request.

Officer Panuthos noticed Spearman near a red Oldsmobile parked on the street below. Panuthos saw Spearman place "items" on one of the car's rear tires and both of its front tires. Over the course of the next thirty minutes, he watched while passersby stopped. In each case, Spearman went to one of the three tires of the car, retrieved something and then made what appeared to be an exchange with the passersby. Some of the passersby were walking and others were in cars. Panuthos could not see the exchanges between Spearman and those in the cars, but he saw Spearman lean into the cars.

After thirty minutes, defendant approached Spearman. Spearman removed the "items" from the tires, and both men got into the red Oldsmobile. Spearman drove away.

The officers took no action but continued their surveillance. Within forty-five minutes, the red Oldsmobile returned. Panuthos saw Spearman get out of the car and look at bushes nearby. Spearman returned to the car and moved it a short distance. At that point, both Spearman and defendant left the car. They walked to a fence, removed a cap from one of its posts and placed small items inside. They then returned to the car. Passersby again approached. In some instances defendant and in other instances Spearman went to the fencepost.

Panuthos described one encounter during which Spearman got out of the car and approached a Jeep. After speaking to someone in the Jeep, he spoke to defendant. Defendant went to the fencepost and returned to Spearman. Spearman went to the Jeep, leaned inside the window and walked away counting money.

Panuthos called for assistance, and Officer Geddes stopped the Jeep on a street nearby. There was a clear plastic bag on the floor of the Jeep that contained a substance later determined to be cocaine. Geddes arrested the driver.

Panuthos also saw Spearman approach a beige Oldsmobile. This encounter followed a similar pattern. This time Spearman went to the fencepost, retrieved something and returned to lean into the passenger compartment of the beige Oldsmobile. When Spearman turned away from the car, he was holding money.

A second call for assistance and a second arrest were made.

Officer Deabreu stopped the beige Oldsmobile. As Deabreu approached the car, he saw the passenger attempting to stick something into her pants. When Deabreu asked the woman what she had, she told him it was drugs and gave Deabreu the package; it was a clear bag that contained a white, rock-like substance later determined to be cocaine. Deabreu arrested the passenger and the driver.

Panuthos and his companions called for other officers to arrest defendant and Spearman. When the marked police car arrived, defendant and Spearman got out of the red Oldsmobile and walked away. Within the view of the surveillance team, Officer Garcia made the arrest. After the arrest, the team asked Garcia to search the fencepost. He recovered twenty-seven glassine envelopes that contained heroin and two small plastic bags that contained marijuana. The drugs were "stuffed inside the fence post" at its top. There was "paper trash stuffed beneath" the drugs. Spearman had $467 on his person at the time of the arrest. Defendant had $95.

Defendant's investigator examined the fencepost in July 2004. It was hollow and was not obstructed by trash. He subsequently took photographs of the fencepost.

The defense presented additional evidence. Aaliyah Tankard, a friend of defendant, testified that defendant was visiting in her apartment between 7:00 p.m. and 9:30 p.m. on April 10, 2004. According to Tankard, defendant and her brother, Hasheid Davis, were playing video games. A few minutes after defendant left, Tankard looked out her window and saw him get into a car. Five or ten minutes later, she saw the police drag him out of the car and arrest him. On cross-examination, Tankard admitted she knew Davis's address; she did not know, however, whether defendant knew where Davis was living.

Diondra Cook, who has known defendant for many years, also testified on his behalf. She described the events immediately preceding defendant's arrest, which she recalled as taking place during the late afternoon. Cook was outside and saw defendant in front of Tankard's apartment building. According to Cook, defendant and Spearman spoke for about four or five minutes, got into the car and did not drive away or get out of the car until the police officers removed them.

In her closing argument, the assistant prosecutor criticized the investigator for the defense based on his failure to interview Tankard's brother, Davis. She concluded that criticism of the defense investigator's work with the following characterization: "That's not investigating. That's a hired hand of someone accused of a crime." In commenting upon Tankard's testimony and the absence of Davis, the assistant prosecutor argued, "Hasheid Davis is, I submit to you, in the control of the defense and would have the same available information [about defendant's whereabouts during the surveillance] but where is he?" In explaining why the State presented evidence that there was marijuana in the fencepost even though defendant was not charged with possession of marijuana, the assistant prosecutor said, "That evidence was presented to you as part of a theory of selling, having a supermarket of drugs, if you will." There was no objection to any of these arguments.

Defendant raises the following issues on appeal:

I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT [ON ALIBI]. (Not raised Below).

II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S IMPROPER RELIANCE ON A CLAWANS ARGUMENT TO SHOW THAT THE DEFENSE OF ALIBI HAD NO MERIT. (Not Raised Below).

III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S CHARACTERIZATION OF THE DEFENSE INVESTIGATORY AS "A HIRED GUN." (Not raised below).

IV. THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not raised below).

V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT, USING THE TACTIC OF CHARACTER ASSASSINATION TO PROVE HER CASE. (Not raised below).

VI. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not raised below).

VII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY STATE CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO SHOW THAT HE DISAPPROVED OR OPPOSED THE ACTIONS. (Not raised below).

VIII. THE SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

As noted at the outset of this opinion, we conclude that the jury instruction, which followed prosecutorial argument suggesting that defendant had the burden of proving his whereabouts, was erroneous and clearly capable of leading the jury to an unjust result. R. 2:10-2.

There is no question the defendant offered "alibi" evidence to support his general denial of guilt. Defendant's general denial of guilt was supported by Tankard's and Cook's testimony. If defendant was playing video games with Davis in Tankard's apartment from the time the officers commenced their surveillance until a few minutes before his arrest, he could not be the person Panuthos saw talking, traveling and working with Spearman.

Failure to include a special instruction addressing evidence of an alibi does not necessarily require a reversal of a conviction. In State v. Garvin, 44 N.J. 268, 273 (1965), the defendant did not request an alibi instruction at trial, but on appeal he objected to the trial court's failure to give the jury guidance on the issue. The Supreme Court affirmed the conviction. Id. at 281. The Court recognized "that alibi is merely a direct denial of the State's charge" and that a special instruction on alibi "as something apart from a direct denial of the truth of the State's case tends to obscure its role and to suggest a defendant has some special responsibility with respect to it." Id. at 273. In that context, the Court described the components of an adequate jury charge in a case involving alibi evidence:

The important thing is to make it plain to jurors that to convict they must be satisfied upon a consideration of all of the evidence that guilt has been established beyond a reasonable doubt. If a defendant's factual claim is laid beside the State's and the jury understands that a reasonable doubt may arise out of the defense testimony as well as the State's, the jury has the issue in plain, unconfusing terms. If events at the trial should be thought to suggest to the jury that the defendant has the burden of proving he could not physically have committed the crime, then of course the trial court should dissipate that danger by telling the jury that the defendant does not have the burden of proving where he was at the critical time and that evidence offered on that score is to be considered with all the proof in deciding whether there is a reasonable doubt as to guilt.

[Id. at 274.]

The jury instruction given in this case did not include the necessary guidance. The trial court gave the jury direction relevant to the presumption of innocence and reasonable doubt.

Mr. Shepard denies his guilt and, as [do] all defendants in every criminal case, he sits in this courtroom assumed to be innocent, unless and until you determine the State has proven at least one of these crimes and all of the elements beyond a reasonable doubt. In the absence of that proof, he is entitled to a judgment of acquittal.

Now, a reasonable doubt is an honest and reasonable uncertainty in your mind as to the guilt of the defendant after you've given full and impartial consideration to all of the evidence. A reasonable doubt might arise from the evidence itself or from a lack of evidence.

. . . . [Description of reasonable doubt standard omitted]

If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of a crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of his guilt, you must give him the benefit of the doubt and find him not guilty. If the evidence bearing upon the guilt of the defendant is reasonably susceptible to two interpretations, one of guilt and one of innocence, the later course should be adopted.

After charging the jurors on the elements of the three crimes at issue and accomplice liability, the court gave additional direction:

Now, Mr. Shepard did not testify in this case. It is the constitutional right of a defendant to remain silent. I charge you that you are not to consider for any purposes or in any manner in arriving at your verdict the fact that he did not testify. Nor should that fact enter into your deliberations or discussion in any manner at any time. Mr. Shepard is entitled for you to consider all of the evidence and he is entitled to the presumption of innocence even though he does not testify as a witness. Therefore, you may not draw any inference of guilt from the fact that the defendant did not testify.

This jury charge, read as a whole, includes one reference to the jurors' obligation to give "full and impartial consideration to all of the evidence," and one reference to the defendant's right to have all of the evidence considered even though he did not testify. There is no reference to defendant's factual claim supported by the testimony of Tankard and Cook or the relevance of that evidence to the State's obligation to prove his guilt beyond a reasonable doubt. Cf. ibid. (noting that when "a defendant's factual claim is laid beside the State's and the jury understands that a reasonable doubt may arise out of the defense testimony as well as the State's, the jury has the issue in plain, unconfusing terms"); State v. Driver, 38 N.J. 255, 290 (1962) (noting error in an instruction that did not explain that defendant was entitled to the benefit of a reasonable doubt raised by his evidence of alibi so that the court could avoid the same error on a retrial required for other reasons).

In addition, "events" at trial suggested that the defense had the burden of proving defendant's whereabouts, and clarification was required. Garvin, supra, 44 N.J. at 274. The events to which we refer are the assistant prosecutor's cross-examination of Tankard about Davis's whereabouts and her argument to the jury about the quality of the defense investigator's efforts and the absence of Davis. The cross-examination was clearly capable of raising a question in the jurors' minds as to whether defendant was required to establish his whereabouts. The assistant prosecutor's closing argument, which suggested a negative inference based on a failure to produce a corroborating witness within the control of the defense, was made without first seeking leave of the trial court out of the presence of the jury, had the same potential for creating confusion about defendant's obligation to establish his whereabouts. See State v. Carter, 91 N.J. 86, 128 (1982) (describing the proper procedure for seeking leave to argue a negative inference and the importance of that procedure in ensuring that the argument is made only when appropriate); see also State v. Irving, 114 N.J. 427, 442-45 (1989) (approving of the procedure and criticizing a prosecutor who failed to comply but finding no plain error). Under these circumstances, the relevant portions of the jury instruction were inadequate. An instruction to dissipate the potential confusion was required. Garvin, supra, 44 N.J. at 274. The jurors should have been instructed that "defendant [did] not have the burden of proving where he was at the critical time and that evidence offered on that score is to be considered with all the proof in deciding whether there is a reasonable doubt as to guilt." Ibid.

The question remains whether the error, not raised at the time of trial, was "plain" - i.e., "clearly capable of producing an unjust result." R. 2:10-2; State v. R.B., 183 N.J. 308, 330 (2005). A new trial is not warranted unless there is "'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" R.B., supra, 183 N.J. at 330 (quoting State v. Bankston, 63 N.J. 263, 273 (1973)) (alterations in original).

In decisions subsequent to Garvin, our courts have measured a jury instruction that does not expressly reference alibi evidence against the standards set in Garvin. Where those standards have been met, our courts have concluded that the error is not plain. For example, in State v. Swint, 364 N.J. Super. 236, 246 (App. Div. 2003), we found that the absence of an alibi charge did not constitute plain error when the charge given included the following: explicit direction that burden of proving each element of a charge "never shifts to the defendant"; explicit direction that a "defendant in a criminal case has no obligation or duty to prove his or her innocence or offer any proof relating to his or her innocence"; and explicit description of reasonable doubt as "an honest and reasonable uncertainty in your minds about the guilt of the defendant after you've given full and impartial consideration to all of the evidence." See also State v. Edge, 57 N.J. 580, 591 (1971) (concluding that the charge, in accordance with Garvin, made it plain that the jurors could not convict unless satisfied, upon a consideration of all of the evidence, that guilt was established beyond a reasonable doubt); State v. Peetros, 45 N.J. 540, 545 (1965) (concluding that there was no basis for reversing a conviction based on the absence of a jury instruction on alibi when "there was no intimation that defendant had to prove" his whereabouts, or "that he had the burden to create a reasonable doubt" or that a "reasonable doubt could not arise from his testimony," and "[t]he trial court made it plain that the burden of proof was upon the State to establish guilt beyond a reasonable doubt upon the entire case"); cf. State v. Echols, 398 N.J. Super. 192 (App. Div.) (addressing a refusal to give an alibi instruction at defendant's request), certif. granted, ___ N.J. ___ (2008). Because the instruction given here does not meet the standard established in Garvin, we are left with a reasonable doubt as to whether the jurors understood the critical principles relevant to a finding of guilt and returned a verdict they would not have returned if the instruction were adequate. See R.B., supra, 183 N.J. at 330. Accordingly, we reverse and remand for a new trial.

The reversal of defendant's convictions obviates the need to discuss his claim of excessive sentence. Other issues raised by defendant, however, may arise again during a second trial, and, for that reason, we consider them.

The prosecutor's argument included statements that were inconsistent with a prosecutor's obligation to see that justice is done. State v. Frost, 158 N.J. 76, 82 (1999). We are, therefore, compelled to reiterate that it is improper for a prosecutor to demean a defense witness with labels like "hired gun" that suggest an economic motive to fabricate a defense; the prosecutor may, however, present arguments based on inferences reasonably drawn from weaknesses in the evidence presented. State v. Smith, 167 N.J. 158, 168-72, 179-89 (2001). In addition, the prosecutor may argue a negative inference based on the absence of a witness only if the trial court has first determined that the inference is warranted under the circumstances of the case and standards established by the relevant case law. See Carter, supra, 91 N.J. at 128.

The remaining arguments lack sufficient merit to warrant more than a brief explanation for that conclusion. R. 2:11-3(e)(2).

The argument raised in Point IV is based on testimony that the area under surveillance was known for drug trade. Contrary to defendant's claim, this testimony, unlike the testimony at issue in Bankston, supra, 63 N.J. at 271, did not suggest an inference that the police had information provided by a non-testifying witness that implicated defendant in the drug trade about which the citizens complained.

The argument raised in Point VI is not supported by the record. The testimony upon which defendant relies was about Spearman's conduct before defendant arrived on the scene. It was background information unrelated to the charges at issue in defendant's trial.

The instruction about which defendant complains in Point VII cannot be read as shifting the burden of persuasion to defendant. That portion of the charge was generally consistent with the "mere presence" portion of the Model Jury Charge on Liability for Another's Conduct, revised May 22, 1995. To the extent that the defense views the charge as objectionable, the issue can be raised at the time of the new trial, when a timely complaint will allow the trial court to address any deficiency or impropriety.

Reversed and remanded for a new trial.

 

We have not given F.R.'s name because there was no evidence relevant to his role in the criminal episode presented at trial.

Our reversal of defendant's convictions makes it unnecessary to address the sentence imposed. Nonetheless, we note that it is improper to impose fines, penalties and assessment for a conviction that has been merged. State v. Trotman, 366 N.J. Super. 226, 237 (App. Div. 2004).

(continued)

(continued)

18

A-6070-05T4

June 27, 2008