STATE OF NEW JERSEY v. CHARLES NELSON, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES NELSON, III, a/k/a MANA

NELSON, CHARLES NELSON, CHARLES M.

NELSON,

Defendant-Appellant.

________________________________________________

August 17, 2015

Submitted August 3, 2015 Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-05-0358.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Travis H. Carter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A grand jury sitting in Union County returned an indictment charging defendant, Charles Nelson, with third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). Defendant was tried to a jury and found not guilty on the burglary charge but guilty on the resisting arrest charge. Defendant was sentenced to fifteen months in prison along with appropriate fines and penalties.

On appeal, defendant challenges comments made by the prosecutor on summation and the court's jury instruction

point one

the prosecutor's improper comments during summation constituted prosecutorial misconduct.

point two

the trial court's comments on the evidence in the identification instruction were improper.

We are not persuaded by these arguments and affirm defendant's conviction.

The evidence at trial established that on January 4, 2012, A.H., his wife V.H., and her daughter A.B. resided in an apartment in a multi-unit home in Linden. A.H. left the home at 2:00 p.m. to go to work. V.H. left between 5:00 and 6:00 p.m., followed shortly thereafter by A.B., who locked the door and turned off the lights.

When V.H. returned at approximately 9:00 p.m., she noticed the apartment door was open, the lights were on, and a television was missing. She called 911 and the police arrived within minutes. In addition to the television, V.H. later found that a second television was missing along with a laptop computer, jewelry, and perfume.

Through an open window, Sergeant Christopher Guenther observed defendant inside the home. Guenther drew his revolver and ordered defendant to stop, but defendant fled. Guenther pursued defendant and was joined by additional officers, including Officer William Turbett. Defendant failed to comply with commands by Turbett to stop. Finally, Turbett caught defendant and ordered him to show his hands. When defendant instead reached into his pocket, Turbett drew his service weapon to hold him until Guenther and two other officers arrived. Defendant attempted to push the officers away, and was flailing his arms and throwing his elbows. He had to be brought to the ground before the police could place handcuffs on him. Defendant was in possession of a ski mask when he was arrested but had none of the items taken from the home.

Defendant claims that the prosecutor argued facts not in evidence during his summation on two occasions. First, in an attempt to explain why defendant was not in possession of any of the items taken during the burglary, the prosecutor made the following argument

And as far as the burglary goes, we all know that he wasn't found with anything on him. We'll actually never know what happened before all this occurred. We don't know what this defendant was doing. We can assume that he was potentially working with somebody else. We can assume that he had been there earlier and that he wanted to come back.

After an objection to the use of the word "assume," the trial judge suggested that the prosecutor should use "infer." He complied

You can infer that he was there earlier and then he came back. And that potentially he succeed[ed] earlier and then wanted more. Or we can infer that he knew someone else was there and that he came back as for seconds. For you know, piggybacking off somebody. We're not going to know that. What we do know is that he was caught inside their home. We're not going to know why he did this. We don't know why he was in this home.

There was no objection to this portion of the prosecutor's summation and we therefore employ the plain error standard of review and ignore any error unless it is clearly capable of producing an unjust result. R. 2:10-2.

Second, defendant asserts that the prosecutor told the jury that V.H. testified that she heard a "commotion." Defendant's counsel objected and argued that it was Guenther who testified that he heard a "commotion." The judge overruled the objection and instructed the jury that it was their recollection of the facts that controlled.

Defendant acknowledges that he was acquitted on the burglary charge, but argues that the improper comments possessed the capacity to prejudice him on the resisting charge. We disagree.

"Prosecutorial comments are deemed to have violated the defendant's right to a fair trial when they 'so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)).

Defendant was observed by Sergeant Guenther inside V.H.'s apartment shortly after numerous items of personal property had been stolen. When police spotted him, he fled and resisted attempts to take him into custody. Those facts warrant an inference that defendant was involved in the burglary that occurred earlier that evening and may have returned to the apartment after taking the stolen items. See State v. Humphreys, 54 N.J. 406, 413-414 (1969) (jury could reasonably infer that defendant possessed a gun which was protruding from the cushions of the rear seat within the zone of defendant's knowledge and control). As Humphreys indicates, such an inference may be made where, as here, it is rational and not arbitrary. Ibid. Even if the inference comment were improper, it does not rise to the level of plain error. R. 2:10-2. We find nothing in the prosecutor's summation that warrants reversal.

Defendant next argues that the following jury instruction as to identification was error

The State has presented the testimony of Sergeant Christopher Guenther. And to some extent Officer Turbett, with respect to the identification. You will recall that Sergeant Guenther identified the defendant in court as the person who he observed in [V.H.'s] apartment . . . in Linden. And that Officer Turbett corroborated that identification, at least to the extent that he testified that the defendant was the person who he saw Sergeant Guenther chasing and who he ultimately apprehended . . . after another chase.

Now, the State also presented testimony that after the defendant was arrested by Officer Turbett and other officers, that the Sergeant identified the defendant at that time as the person who he saw in the apartment. According to the Sergeant, his identification of the defendant was based upon the observations and perceptions that were that he made of the perpetrator at the time the offense was being committed.

Defendant claims that the judge's comment that Officer Turbett "corroborated" Sergeant Guenther's identification of defendant was "an improper comment on the strength of the State's case" and implied "that the police had arrested the right man." As there was no objection to this portion of the jury charge, we again employ the plain error standard.

We disagree that the judge's singular use of the word "corroborated" unfairly suggested that the court conveyed to the jury that the police had arrested the right man. The judge was simply attempting to summarize the testimony of the officers, indicating that they had both identified defendant as the person they arrested. Although the term "corroborate" may be used at times to convey a sense of reinforcement, it is clear from the present context that the judge was not editorializing about the strength of the State's case. Nor was the judge attempting to comment favorably about the officers' credibility. In fact, the court immediately followed this portion of the charge with an instruction stressing that the jury must determine the reliability of the officers' identifications

It is your function to determine whether the witness's identification of the defendant is reliable and believable or whether it is based upon a mistake or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable . . . evidence that this defendant is the person who committed the offenses charged.

We are satisfied that the judge did not comment on the strength of the State's case and properly instructed the jury on their role in weighing the reliability of the officers' identifications.

Affirmed.