STATE OF NEW JERSEY v. MAURICE SHEPARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3569-07T43569-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE SHEPARD, a/k/a MAURICE B.

SHEPPARD, a/k/a MAURICE SHEPEARD

Defendant-Appellant.

________________________________

 

Submitted March 22, 2010 - Decided

Before Judges Reisner and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment

No. 06-01-0058.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Reza Mazaheri, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Maurice Shepard appeals from his conviction by a jury of second degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2) (count one); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). On count one, the trial court sentenced him to fifteen years of imprisonment with the requirement that he serve eighty-five percent of his sentence pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and serve three years of parole supervision upon completion of his sentence. The trial court also imposed the requisite monetary assessments. Count two was merged with count three, and count three was merged with count one.

In this appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION TO REOPEN THE CASE.

A. THE DEFENDANT'S MOTION SHOULD HAVE BEEN GRANTED IN THE INTERESTS OF JUSTICE BECAUSE THE DEFENDANT WAS APPRISED OF THE DISADVANTAGES OF TESTIFYING, THE STATE WOULD NOT HAVE BEEN PREJUDICED, AND THE PROSECUTOR DID NOT OBJECT.

B. THE TRIAL COURT APPLIED AN ERRONEOUS THIRD-PARTY GUILT STANDARD OF ADMISSIBILITY IN DENYING THE DEFENDANT'S MOTION.

POINT II

COMMENTS MADE BY THE PROSECUTOR IN SUMMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW).

A. THE PROSECUTOR IMPROPERLY ACCUSED THE DEFENDANT OF TAILORING THE DEFENSE PRESENTED (NOT RAISED BELOW).

B. THE PROSECUTOR IMPROPERLY COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY AT TRIAL (RAISED IN PART BELOW).

POINT III

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN A STATE'S WITNESS APPEARED IN COURT WEARING PRISON GARB (NOT RAISED BELOW).

POINT IV

IMPOSITION OF AN EXTENDED TERM SENTENCE OF 15 YEARS ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR PASSION/PROVOCATION MANSLAUGHTER WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

For the reasons set forth below, we affirm.

I

The conviction arose out of the death of Corey Koon, on August 19, 2005. The State presented evidence that earlier that day, defendant and Koon were involved in a physical fight in the apartment building where defendant's mother lived. According to Robert Ross, an eyewitness who knew both Koon and defendant, Koon was beating up defendant. Another man came along and broke up the fight, and Koon left the building, without any apparent injury. Defendant had a cut over his eye that was bleeding profusely.

Shortly thereafter, Koon returned to the building and confronted defendant on the fourth floor landing. Ross testified that he looked up and saw defendant pull a knife out of Koon's back shoulder. The fight resumed. Ross saw Koon secure possession of the knife and try to stab defendant.

A fourteen year old eyewitness who also lived in the building testified that she observed defendant pull a knife out of Koon's neck. She testified that defendant and Koon tumbled down the stairs and that Koon took the knife from defendant.

Both eyewitnesses testified that defendant's mother then intervened, sustaining a minor cut to her hand. The knife dropped to the floor, and the fight ended with both defendant and Koon leaving the building. The police arrived and found Koon outside the building in "an obvious state of distress." Koon was taken to the hospital where he subsequently expired. The police recovered a knife from a garbage chute in the building that had Koon's blood on it.

A third eyewitness, Marquann Anderson, testified that he was outside the building on the day in question when he saw through a window defendant and Koon fighting. Koon left the building and then returned. Approximately twenty minutes later, Koon came out of the building "staggering" and requested an ambulance. Anderson later provided a statement to the police wherein he stated that he heard Koon say "he stabbed me." Although at trial, he did not remember Koon making the statement. At the time of his testimony, Anderson was incarcerated on a drug offense, and with no objection by the defense, he testified wearing prison garb.

The medical examiner testified that the stab wound ran from the right side of Koon's back into the chest cavity at a slant downward, back to front, and right to left. Koon's subclavian vein had been cut which caused internal bleeding. Koon died from shock caused by the loss of blood. A significant amount of cocaine was detected in his body.

The only witness presented by the defense was defendant's mother. She testified that on the day in question, her son came to her door with his eye shut and bleeding badly. He told her that he had a fight with Koon. She ran out of the building to try to find Koon. She saw Koon return to the building looking mad. She said people got out of his way, saying that he had a gun. Koon walked past her into the building. As she was coming up the stairs, she was knocked over by Koon and defendant tumbling down the stairs. She then tried to break up the fight. She saw that Koon had a knife, and she pushed his hand to get the knife from him. The knife fell to the floor, and she sustained a cut to her finger. She also testified to Koon's reputation for violence in the community.

Defendant did not testify at his trial. At the conclusion of the defense's case, the following colloquy took place in which defendant waived his right to testify:

THE COURT: And do you want to testify? Have you discussed with your attorney whether you will take the stand on your own behalf?

THE DEFENDANT: No, I'm not taking the stand.

THE COURT: You are not?

THE DEFENDANT: No.

THE COURT: Mr. Liguori [defense counsel] and you talked about that?

THE DEFENDANT: Yes.

THE COURT: And he gave you some advice?

THE DEFENDANT: Yes.

THE COURT: And you weighed what he said?

THE DEFENDANT: Yes.

THE COURT: But the decision is yours. You are not testifying because you do not want to testify. Is that right?

THE DEFENDANT: Yes.

THE COURT: Do you understand you have an absolute right to testify in this case?

THE DEFENDANT: Yes.

THE COURT: And whether you do so or not is up to you?

THE DEFENDANT: Yes.

THE COURT: All right.

DEFENSE COUNSEL: The record should further reflect, Judge, it is not just here today we have had the discussion. We have had this discussion and I think Mr. Shepard will agree that since maybe the day of inception when I met him ten months ago. So it has been a discussion that has gone on for a long time.

The trial court then determined that defendant wanted a charge on his right to remain silent.

In his summation, defense counsel asserted a theory of self-defense, contending that Koon had been the aggressor, that he had just brutally beaten up defendant, and that the stabbing took place in a life or death confrontation. After the State presented its summation and before the judge charged the jury, defense counsel indicated that his client wanted to reopen the case in order to testify that a third party was involved.

Upon questioning by the judge, defendant advised that he wanted to testify that "[i]t wasn't me that stabbed him." He further indicated that his mother's account of his struggle with Koon "never happened." Thus, defendant's proposed testimony would contradict the self-defense argument just made by his attorney and his own mother's testimony. The defense attorney indicated that if the case were reopened, he would move for a mistrial. He explained that any credibility he had built up with the jury would be diminished because of defendant's change in position. At a minimum, defense counsel sought to withdraw if defendant were allowed to testify so that another attorney could present the defense. While the State did not object to reopening the case to allow defendant to testify, it objected to a mistrial, noting that defendant may not create the circumstances for his own mistrial. The trial court denied the application, finding that defendant had made a knowing and voluntary waiver of his right to testify.

Although defendant had been indicted for first degree murder, N.J.S.A. 2C:11-3, the jury found defendant guilty of second degree passion/provocation manslaughter. The jury also found defendant guilty of the related weapons offenses noted above. This appeal followed.

II

Defendant contends that the trial court abused its discretion in denying his application to reopen the case in order to testify. We disagree. The decision to reopen a case rests in the sound discretion of the trial court. State v. Cooper, 10 N.J. 532, 564 (1952). In State v. Gray, 101 N.J. Super. 490, 494 (App. Div.), certif. denied, 52 N.J. 484 (1968), we held, in circumstances almost identical to the situation presented here, that a trial court did not abuse its discretion in refusing to reopen the record to allow defendant to testify when defendant had waived his right to testify and summations had already been given, although the jury had not yet been charged.

Defendant's reliance on State v. Wolf, 44 N.J. 176 (1965) is misplaced. In that case, the Court considered whether the trial court had the discretion to reopen the case to take more evidence after the jury had begun deliberations. Id. at 188-92. The defense sought to present the testimony of a State's witness who had advised the defense that he was recanting. Id. at 184. The Court acknowledged that such a request at that late stage in the proceedings "should not be taken lightly." Id. at 191. However, the trial court should reopen the case "when the ends of justice will be served" by doing so. Ibid. The Court found that the trial court mistakenly exercised its discretion when it refused to reopen the case because the issue of guilt turned in large part on the jury's assessment of the credibility of the recanting witness's testimony. Id. at 191-92. We further note that in Wolfe this additional evidence, namely the witness's recantation, did not become known to defendant until the presentation of the defense had closed. Id. at 183-84.

In the case at hand, new evidence did not arise which triggered defendant's request that he be allowed to introduce additional proof. Rather defendant merely changed his mind, and decided after summations had been given, that he wanted to testify in order to assert a different defense. Unquestionably, defendant had waived his right to testify at the end of the taking of evidence, and he allowed the case to proceed to summations without objection. It was not an abuse of discretion under the circumstances here, for the trial court to hold defendant to his decision.

III

Defendant also contends that the prosecutor, in his summation, improperly accused defendant of tailoring his defense to the evidence and improperly commented upon defendant's failure to testify. A prosecutor is expected "to make a vigorous and forceful closing argument to the jury." State v. Harris, 141 N.J. 525, 559 (1995). However, when doing so, the prosecutor may "not make inaccurate legal or factual assertions," State v. Reddish, 181 N.J. 553, 641 (2004) (quoting State v. Smith, 167 N.J. 158, 178 (2001)), or "cast unjustified aspersions on defense counsel or the defense," State v. Scherzer, 30l N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997). Prosecutorial misconduct will warrant a reversal of the conviction "where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).

Defendant contends that the following comments by the prosecutor in his summation improperly suggest that defendant tailored his defense to the proofs:

The defendant killed Corey [Koon]. We have that admission now. Now it is a self-defense case after the case has been tried.

. . . .

You were not going to find a third party which is what we started out with when Mr. Liguori [defense counsel] opened up. The blood of the third person in the hallway and this was not a self-defense case back then but -

Defense Counsel: I object to that, Judge, based on the court's ruling previously.

Court: I will overrule the objection. Proceed.

Generic accusations by the prosecutor that the defense has been tailored based on the evidence presented at trial are improper. State v. Daniels, 182 N.J. 80, 98 (2004). A defendant has the right to be present at his trial, to confront the witnesses against him, and to hear the testimony of the witnesses. Id. at 97. The suggestion that by his doing so he has tailored his defense "inverts those rights, permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees." Id. at 97-98.

We view the prosecutor's statement that "[n]ow it is a self-defense case after the case has been tried" and "this was not a self-defense case back then" as improper. These statements suggest that the defendant tailored his defense to fit the testimony at trial. However, in the context of this trial, we do not view the statements as "so egregious that it deprived the defendant of a fair trial." State v. Frost, supra, 158 N.J. at 83. First, many of the facts supporting defendant's claim of self-defense, namely the fact that Koon had initially beaten defendant up and then returned to confront defendant, were established by the State's witnesses. Thus, the jury could not reasonably believe that defendant had fabricated this evidence to comport with the proofs adduced at trial. Second, defense counsel did obliquely raise the possibility of self-defense in his opening statement when he said that the State must prove that "Maurice Sheppard was the aggressor, not Corey Koon." Finally, these were fleeting remarks in a lengthy summation in a case with substantial proofs against defendant.

Defendant also contends that the following statement by the prosecutor in his summation improperly commented upon his failure to testify at trial:

Evidence is what you hear from the witness stand. People getting up here, introducing items, saying things that happened and there is absolutely no evidence that this defendant acted in self-defense. You heard no witness say that he said I had to react in self-defense. You heard no witness say that he was threatened with actual deadly force. [Defense counsel]'s imagination [sic] to create it but there is absolutely no evidence of self-defense in this case that came through a witness.

Trial counsel's objection was overruled.

As the court explained in State v. Sinclair, 49 N.J. 525, 548-49 (1967), when a prosecutor comments on the absence of evidence "and if it does not clearly appear that persons other than defendant could have been called, there is a danger that he may reflect upon a defendant's Fifth Amendment right to remain silent." As a result, "[e]very time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated." Id. at 549.

Here there were other witnesses that viewed, at least in part, defendant's final fight with the victim. The prosecutor's argument can reasonably be viewed as referring to the absence of testimony from these witnesses supporting a theory of self-defense. While the prosecutor's statement straddled the line of permissible statements, we do not find in the context of this case that any error in the argument deprived defendant of a fair trial.

In defendant's next point, he contends that his right to a fair trial was violated because one of the State's witnesses appeared in prison garb. However, defense counsel indicated on the record that he did not object to the witness appearing in prison garb. We find no plain error here, R. 2:10-2, and we decline to further address the issue without prejudice to defendant's right to raise it in a post-conviction relief application.

Lastly, the sentence imposed fell well within the trial court's discretion. State v. Roth, 95 N.J. 334, 364-66 (1984).

 
Affirmed.

(continued)

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A-3569-07T4

May 6, 2010