STATE OF NEW JERSEY v. ERIC HILLMAN

NOT FOR PUBLICATION WITHOUT THE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.

ERIC HILLMAN,

Defendant-Appellant.

____________________________________________________

May 22, 2015

Argued May 12, 2015 Decided

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-04-652.

Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief).

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).

PER CURIAM

Defendant was tried and convicted by a jury of: third-degree possession of methamphetamine, N.J.S.A. 2C:35-10(a)(1); second-degree possession of methamphetamine with intent to distribute over one-half ounce, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(9)(A); and second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1(a). After merging the drug convictions, the judge imposed a three-year prison term; the judge also imposed a consecutive five-year prison term on the weapons offense.

Defendant appeals, arguing

I. THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S REQUEST TO WAIVE A JURY TRIAL AND PROCEED WITH A BENCH TRIAL (Raised Below).

II. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT IN SUMMATION BY ARGUING THAT DEFENDANT HAD A DUTY TO VOLUNTEER INFORMA-TION TO POLICE DURING HIS ARREST, WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL (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.

"[T]rial by jury is fundamental to the American system of criminal justice." State v. Dunne, 124 N.J. 303, 316 (1991). And, while the right to trial by jury may be waived by a defendant, our Supreme Court has recognized that it remains "the 'normal and, with occasional exceptions, the preferable mode of disposing of issues of fact' in major criminal cases." Ibid. (quoting Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 263, 74 L. Ed. 854, 870 (1930)); see also R. 1:8-1(a). Accordingly, the Dunne Court determined that in considering whether to give effect to a defendant's waiver of trial by jury, a judge should

(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;

(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and

(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, . . . it should grant or deny the defendant's request in the circumstances of the case.

[Id. at 317.]

The Court described the factors referred to in the third element in the following way

Although there is no "judicial calculus that unerringly resolves each case," State v. R.G.D., 108 N.J. 1, 12 (1987), the "evidential axis" that we described in R.G.D. provides a useful analogy. At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere [recognizing this may cut both ways], the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence.

[Ibid.]

Because the accused does not possess a "constitutional right to waive a jury trial and insist on a bench trial," id. at 316, the matter rests with the trial judge's sound discretion.

As the judge noted, there was no legitimate question about the first element and although the State argued the second element warranted denial of defendant's request, the judge found defendant's waiver was made in good faith. The controversy in the trial court turned on the application of the third element.

In seeking the judge's exercise of his discretion in favor of conducting a bench trial, defendant relied on the fact that he was not contesting the drug charges and, therefore, was concerned a jury would be unable to fairly put aside that concession in determining the purpose for which he possessed the weapon in considering the remaining count. In a thorough and well-reasoned oral decision, the trial judge applied Rule 1:8-1(a) and the factors set forth in Dunne. The judge relied on the seriousness of the charged offenses including two second-degree offenses carrying a presumption of incarceration. The judge recognized the trial would be "relatively short" and no "evidentiary issues" or technical complexities were identified; he also observed in examining defendant's chief concern of prejudice in light of his concession the constructive possession theory upon which the State sought defendant's conviction of the weapons offense "is clear, succinct and susceptible to being easily understood by one not trained in the law." The judge lastly stated that "this is a victimless crime" and there is "very little risk that a jury would be swayed inappropriately by emotion." For these reasons, the judge denied defendant's request. After close examination of these circumstances, we reject defendant's Point I substantially for the reasons set forth by the trial judge in his oral decision.

We also reject defendant's Point II. To be sure, there are always grave concerns when a defendant's silence is the subject of a prosecutor's summation. See, e.g., State v. Muhammad, 182 N.J. 551, 558 (2005) (recognizing a defendant's "silence while in custody, under interrogation, or 'at or near' the time of his arrest cannot be used against him in a criminal trial"). But, when a defendant gives statements to police and takes the stand at trial, his credibility, which may be impacted by what he failed to mention at other times, is fair game. See, e.g., State v. Tucker, 190 N.J. 183, 189 (2007); State v. Brown, 190 N.J. 144, 158-59 (2007). Here, defendant testified about the execution of a search warrant on his residence and how he had revealed to police where the drugs, gun and legitimate money were located. In his summation, defense counsel responded to the prosecutor's cross-examination regarding defendant's failure to tell police where illegitimate funds were hidden in the home. Consequently, the prosecutor responded in his summation in this way

Well, where was that drug money? I kept it somewhere else. Well, where else did you keep it? Somewhere else. Tell the jury. Let's just find out. Where was that other money? Oh. I hid it up above the bathroom. The ceiling tile up there. But did you hear anything about when the police were taking all this money out of this bedroom? Did he say wait, wait, wait. Guys, that's my life savings. That's from working on motorcycles. That's from working on trucks. That money is legitimate. The drug money, it's over here. I'll show you where the drug money is. But please, don't take this money. He didn't say that.

Defense counsel objected and sought a mistrial. The judge denied the application but gave an immediate and thorough curative instruction, informing the jury that "a defendant has no obligation to say anything to the police." In particular, the judge told the jury that defendant "was under no obligation to tell the police or explain to the police that to which he testified to here," and that

He has a constitutional right to remain silent. You should not infer that merely because [defendant] did not provide an explanation to the police as to the money found that therefore, his testimony in explaining where the money . . . had come from must be disbelieved.

Even if we were to assume the prosecutor's argument exceeded the bounds of propriety and improperly infringed defendant's right to remain silent despite the fact that defendant gave statements to both the police, when they executed the search warrant, and later, when testifying in front of this jury the judge's immediate curative instruction eliminated any prejudice.

Affirmed.