STATE OF NEW JERSEY v. RODNEY J. MORGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3725-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY J. MORGAN,

Defendant-Appellant.

__________________________________________________

January 16, 2013

Submitted January 8, 2013 - Decided

Before Judges Fisher, Waugh and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-08-0737.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Theodore J.Romankow, UnionCounty Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, on the brief).

PER CURIAM

While conducting surveillance of an area near a Plainfield train station on May 5, 2008, two officers first observed and later pulled over and detained, on the basis of a moving violation, a vehicle in which defendant was a passenger. The officers detected a strong odor of marijuana and subsequently found marijuana while conducting a search of the vehicle. Defendant and the vehicle's driver were arrested.

The transporting officer observed defendant moving excessively in the backseat of the police vehicle, as if defendant was trying to place his hands inside the back of his pants. When defendant was removed from the vehicle at the police station, the officer searched the rear seat and found a sandwich bag containing twenty-one smaller plastic bags filled with crack cocaine. Once in the station, a search of defendant uncovered another sandwich bag containing eighteen smaller plastic bags containing crack cocaine.

Defendant was indicted and charged with: third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3) (count two); third-degree CDS possession with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree CDS possession with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).

Prior to trial, the judge conducted a hearing to consider defendant's request to represent himself at trial. The judge granted the request, appointed standby counsel, and established a May 26, 2009 trial date. Defendant acknowledged he understood the judge's warning that the trial would proceed without him if he did not appear on the trial date.

Defendant failed to appear for trial on May 26, 2009. The judge adjourned the matter until the next day. When defendant again failed to appear, the judge revoked defendant's right to represent himself and declared that the trial would proceed in defendant's absence. Standby counsel1 requested a continuance until such time as defendant was taken into custody or otherwise appeared. The judge denied that request.

The trial occurred, without defendant, on May 27 and 28, 2009. The jury found defendant guilty of all charges except count three.

Defendant appeared for sentencing on September 10, 2010. After a merger of counts one and two into count four, the judge imposed a nine-year prison term subject to a four-year period of parole disqualification.

Defendant appeals, arguing:

I. THE TRIAL COURT ERRED IN DENYING TRIAL COUNSEL'S REQUEST FOR A CONTINUANCE BASED ON THE FACT THAT TRIAL COUNSEL HAD NEVER MET MR. MORGAN PRIOR TO HIS TRIAL IN ABSENTIA.

II. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY NOT TO CONSIDER MR. MORGAN'S ABSENCE FROM TRIAL DURING ITS FINAL CHARGE TO THE JURY (Not Raised Below).

III. POLICE TESTIMONY THAT IMPLIED THAT POLICE HAD INCRIMINATING EVIDENCE AGAINST MR. MORGAN BEYOND THAT PRESENTED TO THE JURY, THEREBY PREJUDICING MR. MORGAN'S RIGHT TO A FAIR TRIAL (Not Raised Below).

IV. THE JURY'S GUILTY VERDICT ON THE CHARGE OF POSSESSION WITH INTENT TO DISTRIBUTE WITHIN 500 FEET OF PUB[L]IC PROPERTY WAS AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below).

V. PROSECUTORIAL MISCONDUCT IN SUMMATION DEPRIVED MR. MORGAN OF A FAIR TRIAL (Not Raised Below).

VI. THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. MORGAN (Not Raised Below).

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Points I, II and IV.

In Point I, defendant claims the judge erred in refusing an adjournment of more than one day. Our review is governed by the abuse of discretion standard. See, e.g., State v. Hayes, 205 N.J. 522, 537 (2011); State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). Here, the judge's decision to adjourn until the next day to give defendant a second chance to appear was appropriate, and his determination that the matter proceed thereafter fell well within his broad discretion to control the court's calendar. Hayes, supra, 205 N.J. at 538; Furguson, supra, 198 N.J. Super. at 402. We find no reason to second-guess that determination, particularly when the ground upon which defendant sought a lengthier adjournment was of his own making, and because defendant suggested no reasonable alternative other than holding the matter in abeyance until defendant deigned to appear.2

In Point II, defendant contends the judge's instructions to the jury concerning defendant's absence were erroneous or incomplete. Specifically, defendant contends that the trial judge's failure to utilize the model jury charge regarding his absence3 constituted error. Because his counsel did not object at trial, defendant is required to demonstrate that this alleged error was capable of producing an unjust result. R. 2:10-2.

Although the judge did not utilize the model jury charge quoted in the footnote, he did instruct the jury that defendant's election not to appear was not to play a role in its deliberations when he instructed on defendant's right to remain silent:

Now as you know the defendant in this case elected not to testify. In fact, he elected not to appear. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your . . . deliberations or your discussions in any manner or at any time. The defendant is entitled to have the jury consider all the evidence presented at trial. He is presumed innocent if he chooses not to testify.

[Emphasis added]

To be sure, "clear and correct jury instructions are fundamental to a fair trial," State v. Adams, 194 N.J. 186, 207 (2008), and erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy," State v. Simon, 79 N.J. 191, 206 (1979). But, the charge in question was neither erroneous nor confusing. It would have been preferable for the judge to have given a separate instruction on defendant's election not to appear, but combining it with the instruction on the right to remain silent was not capable of producing an unjust result. The clear thrust of the judge's charge conveyed to the jury that defendant's election not to appear for trial was not to be considered during their deliberations.

We lastly observe that defendant's Point IV, in which he claims the jury's verdict on count four was against the weight of the evidence, is not reviewable because defendant did not move for a new trial. R. 2:10-1. Consequently, we offer no view as to whether the evidence allowed the jury to draw a reasonable inference that defendant possessed the drugs while within 500 feet of a school zone because he was found in possession of drugs when later stopped at another location.

1The Public Defender's Office replaced defendant's original standby counsel with another attorney the week before trial.

2Defendant also argues that he never consulted with the replacement standby counsel, but he has not shown that such consultation would have made a difference in the proceedings that followed.

3The charge defendant now argues should have been given states:

As you know, (defendant) was absent from the trial. You should not speculate about the reason for his/her absence.

You are not to consider for any purpose or in any matter in arriving at your verdict the fact that (defendant) was not present at trial. That fact should not enter into your deliberations or discussions in any matter, at any time.

(Defendant) is entitled to have the jury consider all evidence presented at trial. He/She is presumed innocent even if he/she is not present.

[Model Criminal Jury Charge, "Defendant's Absence from Trial" (June 14, 2004).]