STATE OF NEW JERSEY v. STACIA C. SIMMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1860-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

STACIA C. SIMMS,

Defendant-Appellant.

__________________________________

March 20, 2012

Submitted: February 29, 2012 - Decided:

Before Judges Cuff and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-0465.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

GeoffreyD. Soriano,Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Stacia C. Simms of two counts of third degree perjury, N.J.S.A. 2C:28-1a. Both counts of perjury are based on her testimony in the matter of State v. Ramsey, 415 N.J. Super. 257 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011). Count one alleged that she falsely testified at trial that she never saw Michael Ramsey with a gun on the evening that Terrell Spruill died from a gunshot wound to the abdomen. The second count of perjury is founded on her trial testimony that she dropped Ramsey off at his mother's house around 7:30 p.m. on the night of the murder. She was sentenced to concurrent terms of two years probation subject to 364 days in the county jail and twenty-five hours of community service. The appropriate fees, penalties, and assessments were also imposed.

On appeal, defendant raises the following arguments:

Point One - THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S APPEAL FROM THE DENIAL OF HER APPLICATION FOR ADMISSION TO THE PRE-TRIAL INTERVENTION PROGRAM.

Point Two - THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL WAS ERROR WHICH DENIED DEFENDANT A FAIR TRIAL.

Point Three - THE ADMISSION OF IRRELEVANT AND UNDULY PREJUDICIAL EVIDENCE WAS REVERSIBLE ERROR.

Point Four - THE JURY INSTRUCTIONS ON THE CRIME OF PERJURY CONSTITUTED PLAIN ERROR.

Point Five - THE TRIAL COURT'S QUASHING OF THE DEFENSE SUBPOENA SEEKING THE TESTIMONY OF ELLEN KIMMEL WAS ERROR.

Point Six - DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.

The facts of the underlying trial in which defendant testified as a witness for the State and which form the basis for the indictment on two counts of perjury are set forth in our reported decision in Ramsey, supra. In that case, a jury found Michael Ramsey guilty of murder. The victim, fifteen-year-old Terrell Spruill, was shot by a person in a passing car. The evidence introduced at trial established that defendant was the driver of the passing car. As related in our opinion,

Simms . . . gave a statement to the police that she saw [Ramsey] in possession of a firearm and gave a description of the fire-arm. Simms also indicated in her statement that they passed by the area where the victim and the two girls were standing twice. She stated that the second time around "the guy got shot" and she heard what sounded like firecrackers. Moreover, Simms stated that she heard a girl scream, and as she was driving away she heard [Ramsey] "laughing in the car." However, . . . Simms testified at the trial that the statement she had given previously was false.

[Id. at 262.]

At the conclusion of the State's evidence in the perjury trial, the prosecutor read to the jury the certified stenographic transcript of defendant's testimony at the Ramsey trial. The State rested and defendant moved for a judgment of acquittal. The trial judge denied the motion, defendant did not testify or produce any witnesses, and rested. The jury found defendant guilty as charged.

Having considered the arguments presented in light of the record, we are satisfied that defendant's arguments that the trial judge should have granted her motion for a judgment of acquittal, that the judge admitted irrelevant and unduly prejudicial evidence, that the trial judge should not have quashed a defense subpoena, and that defendant received an excessive sentence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We address only the arguments that defendant should have been admitted to pre-trial intervention (PTI) and that the perjury jury instructions were plainly erroneous.

Defendant argues the prosecutor abused his discretion when he denied her application to participate in the PTI program. She contends the prosecutor utilized a form letter and argues she was entitled to a specific statement of reasons. In his supplemental statement of reasons, the prosecutor stated that "[d]efendant is not an appropriate candidate for PTI because she illustrated a blatant disregard for the law by deciding to recant her testimony and lie under oath more than a year in advance of the trial." He noted that her testimony could have led to the acquittal of a killer. The prosecutor also argued that defendant required more structured supervision than her proffer of 100 hours of community service.

PTI is "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). "The purposes, goals, and considerations relevant to PTI are found at N.J.S.A. 2C:43-12, and in Rule 3:28." State v. Brooks, 175 N.J. 215, 223 (2002). The Supreme Court formally adopted Guidelines For Operation of Pretrial Intervention in New Jersey (Guidelines) on September 8, 1976. Pressler & Verniero, Current N.J. Court Rules, comments on R. 3:28 (2012). The Guidelines are not mandatory. State v. Leonardis (Leonardis I), 71 N.J. 85, 111 (1976). Rather, they embody the considerations delineated in N.J.S.A. 2C:43-12e. Brooks, supra, 175 N.J. at 224.

A prosecutor's review of an offender's application for PTI must be informed by certain principles. First, "PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." State v. Nwobu, 139 N.J. 236, 255 (1995) (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). See also N.J.S.A. 2C:43-12b ("Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense."). Second, the State's determination, grounded on the specific facts presented, must be guided by the relevant factors set forth in the statute, N.J.S.A. 2C:43-12(e), and described in the Guidelines accompanying Rule 3:28. Pressler & Verniero, supra, Current N.J. Court Rules, comments on R. 3: 28 Guideline 3.

Generally, the scope of a trial court's review of the State's decision to reject a PTI application is "'severely limited,'" Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), as the initial decision to accept or reject a defendant's PTI application lies within the scope of the prosecutor's discretion in selecting "whom to prosecute and whom to divert to an alternative program, such as PTI." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977)). This decision is entitled to considerable deference. Id. at 582-83; State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" Kraft, supra, 265 N.J. Super. at 111 (quoting DeMarco, supra, 107 N.J. at 566; State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)).

"Against this backdrop, it is quite clear that 'a trial [court] does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor.'" Id. at 112 (quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980) (alterations in original)). This applies even where the trial court disagrees with the prosecutor's decision, or finds it to be harsh. See DeMarco, supra, 107 N.J. at 567. Judicial interference must be reserved only for those cases where it is necessary to correct "the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting Leonardis II, supra, 73 N.J. at 384).

Even so, a prosecutor's discretion in such a matter is not "unbridled." Wallace, supra, 146 N.J. at 582. A defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382.

If a rejected defendant can prove the State's decision: "(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment," then an abuse of discretion would "[o]rdinarily . . . be manifest." State v. Bender, 80 N.J. 84, 93 (1979). Thus, the State's decision must be "'clearly unreasonable so as to shock the judicial conscience'" or "'could not have reasonably been made upon a weighing of the relevant factors.'" Nwobu, supra, 139 N.J. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).

Defendant cannot overcome the enhanced deference that this court must accord to the decision of a prosecutor to admit or reject a person for participation in this diversionary program. Perjury is a very serious offense. It undermines the process for adjudicating disputes and prosecuting those who violate the law. Although the serious nature of the offense informed the decision of the prosecutor, the record does not suggest that he categorically denied the application due to the nature of the offense. See Caliguiri, supra, 158 N.J. at 43-44. Rather, the record demonstrates the prosecutor carefully evaluated all relevant factors as well as defendant's role in the underlying events and the possible impact of her perjury at the Ramsey trial. In short, we cannot hold that this is one of those rare "most egregious examples of injustice and unfairness." Negran, supra, 178 N.J. at 82.

Defendant also contends the trial judge provided an erroneous instruction on perjury. The trial judge delivered the model jury charge governing perjury. He omitted any reference to renunciation or retraction. Defendant did not object to the charge. On appeal, defendant contends that the judge should have included the defense of retraction for Count One. Defendant bases this argument on her alleged testimony in the Ramsey trial, which was not part of the record of this trial.

We review the alleged error in accordance with the plain error rule. R. 2:10-2. Defendant must establish that the absence of this portion of the perjury charge was clearly capable of producing an unjust result. Ibid. Defendant cannot carry that burden.

Defendant's argument ignores the absence of any evidence of retraction or renunciation in this trial record. Defendant did not testify at trial. The facts that form the basis of this argument are drawn from the Ramsey trial testimony, none of which was introduced at trial other than the certified stenographic transcript of defendant's testimony at that trial. The trial judge provided an appropriate jury instruction on both counts of perjury based on the record adduced at the trial.

We would be remiss if we did not admonish counsel about the use of extra-record material as the basis for an argument. It is not acceptable to base an argument on extra-record material without filing a motion to supplement the record. In this case, the extensive reference to transcripts from the murder trial neither introduced at this trial nor supplied to this court unnecessarily complicated review of this appeal.