STATE OF NEW JERSEY v. RENE M. JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENE M. JACKSON,

Defendant-Appellant.

___________________________________________

December 16, 2016

Argued October 25, 2016 Decided

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-04-0874.

Howard W. Bailey argued the cause for appellant.

Kayla Elizabeth Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rene M. Jackson was tried before a jury and found guilty of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a), and fourth-degree knowingly pointing a firearm in the direction of another, under circumstances manifesting extreme indifference to the value of human life, contrary to N.J.S.A. 2C:12-1(b)(4). Defendant appeals from an order denying his motion for a new trial, and the judgment of conviction dated June 26, 2015. We affirm.

I.

We briefly summarize the relevant testimony presented at trial. On December 24, 2013, at around 11:00 p.m., S.F. was in a basement of a residence on Stuyvesant Avenue in Irvington.1 S.F.'s friend J.S. had invited him over to listen to music, drink beer, and play dominos and card games. Eight or nine other persons were present, including defendant, J.S., and V.S. S.F. had been acquainted with defendant for about a "month or so" and had "hung out" with him "around four or five" times.

S.F. and defendant were playing dominos under the rule that the loser had to dance to a "funny song." Defendant lost several games and refused to dance. S.F. testified that defendant "started cursing a lot," and S.F. told him, "I have no time for you." According to S.F. and J.S., defendant started punching S.F. and got into a fistfight.

V.S. and J.S. stepped in and separated defendant from S.F. The witnesses gave differing accounts as to what happened next. S.F. testified that defendant threatened him, stated that he was going to shoot him, and left to go outside. V.S. and J.S. said that S.F. tried to attack defendant with broken bottles. They both testified that V.S. took defendant outside to break up the fight, and that S.F. followed them outside to continue the fight.

S.F. testified that it was around midnight when he left the basement and went outside. According to S.F., defendant approached and pointed a gun at him. S.F. stated that V.S. struggled with defendant and disarmed him. He said that the area where defendant pointed the gun at him was brightly lit, and there was a streetlight "right where we were." S.F. was able to notice details clearly. S.F. described defendant's gun as "black" and "around six inches in length." He asserted that the gun was an automatic and not a revolver, and similar in style to a police handgun. After the incident, defendant departed, and S.F. called the police.

V.S. testified that S.F. had come outside holding a broken glass bottle and that defendant went to his car to retrieve a red steering wheel lock club to defend himself. V.S. also testified that he never saw defendant point a gun at S.F. V.S. stated that he pushed defendant back into the basement and left S.F. outside.

The police arrived early on December 25, 2013. By that time, the party had shut down. There was a light on in the house, but when the police knocked on the door, someone turned off the light. V.S. claimed that he did not hear or see the police when they arrived. The police questioned S.F., who identified defendant by name and showed the police defendant's car, which was parked near the house. Later that day, the police arrested defendant and towed his car.

Thereafter, defendant provided a recorded statement to the police, which was played at the trial. Defendant told the police he owned a registered Smith & Wesson, 9mm handgun, which he kept in the trunk of his car. The weapon and a gun magazine were found in the glove compartment of defendant's car. At trial, S.F. identified the gun found in defendant's car as the gun that defendant pointed at him on the night of December 24, 2013.

Defendant admitted he got into an altercation with S.F. while playing dominos, and that the dispute continued out on the street. Defendant denied that he pointed his handgun at S.F. He said that S.F. attacked him with a broken bottle, and he defended himself, using the lock club device from his steering wheel. The State then rested its case.

Thereafter, Detective Michael Gilmore of the Essex County Prosecutor's Office spoke with Se.F., who had been listed as a defense witness. Se.F. told Gilmore that defendant had asked him to testify falsely that he, S.F., and defendant had gone to a gun firing range earlier during the day on December 24, 2013. This testimony apparently was intended to establish that S.F. had known that defendant owned a handgun before the altercation. Se.F. also told Gilmore that defendant told him he went back to his car to get his gun so that he could confront S.F.

On January 21, 2015, the assistant prosecutor asked the trial judge for permission to reopen the State's case, so that he could present testimony about the statement that Se.F. had provided to Gilmore. The assistant prosecutor said that several days after the December 24, 2013 incident, defendant spoke with Se.F. and told him that after the altercation with S.F., he went to get his gun. However, by the time defendant returned, S.F. was gone.

Se.F. also said defendant told him he needed Se.F. to testify that he went with defendant to a gun firing range on December 24, 2013. The assistant prosecutor indicated that defendant and Se.F. knew the statement was false. In addition, Se.F. also stated that defendant had phoned him several times "to that same effect."

The assistant prosecutor told the judge that defendant's purpose in eliciting this false testimony was to establish that S.F. knew defendant had a gun because S.F. was at the firing range with defendant and Se.F. earlier in the day on December 24, 2013. According to the assistant prosecutor, this false testimony would support the statement that defendant gave to the police.

The judge noted that after obtaining the recorded statement, the State had tendered a plea offer to defendant and his attorney. The assistant prosecutor noted that if defendant pled to fourth-degree knowingly pointing a gun at S.F., as charged in the indictment, the State would recommend a sentence of eighteen months of incarceration, with an eighteen-month period of parole ineligibility. Defense counsel told the judge he had discussed the offer with defendant, and defendant had rejected it. The judge questioned defendant and he confirmed that he had rejected the plea offer.

Gilmore testified, out of the presence of the jury, about the statement Se.F. had given to him. Gilmore stated that he had spoken to Se.F. that day, and the judge asked Gilmore whether Se.F. was recanting the statement. The assistant prosecutor said Se.F. was recanting his statement but "[n]ot fully." The assistant prosecutor stated that Se.F. had indicated that he had been confused by the detective's questions.

Se.F. testified that he had given the detective a statement on January 16, 2015. Se.F. read a copy of the statement, which had been transcribed. He admitted that those were his words. The judge asked Se.F. whether he was going to testify consistently with his statement. He did not dispute the statement he had provided. The judge then granted the State's motion to reopen the case.

Se.F. testified before the jury that he knew S.F. for about nine years, and he described defendant as a "close friend" for more than "five years." He denied that defendant told him that on the night of the altercation with S.F., he had gone to his car to get a gun.

At this point, the assistant prosecutor asked the judge to conduct a hearing pursuant to State v. Gross, 121 N.J. 1, 16 (1990), to determine if Se.F.'s prior statement was reliable. The judge denied the application, finding that a hearing was not required because Se.F. had not denied he made the prior statement to Gilmore.

Se.F. further testified that on January 15, 2015, defendant called him and asked him to testify for the defense. Se.F. claimed, however, that defendant did not tell him what to say. In the statement provided to Gilmore, Se.F. said

Okay. So the [d]efendant basically asked me well, basically told me what to say and how to testify in his defense stating that when asked to say, yes, we had been to the range on December 24th of 2013, which is not true.

. . . .

I also informed the [d]efendant that I cannot do such a thing under oath and that if I do testify it will be to the best of my knowledge and truthfully.

. . . .

The [d]efendant said, he, he just ke[pt] telling me, just say it, just say it, just say [that] we [had] been to the range on December the 24th, just say we [had] been to the range on December 24th and everything will be fine.

When Gilmore asked Se.F. whether defendant had "called you and asked you to lie under oath in the court by saying that you were on the range at December 24th, 2013," Se.F. replied that was correct.

Before Se.F. was dismissed, the judge briefly questioned him about his statement. Se.F. said he was not at the firing range on December 24, 2013, but defendant wanted him to testify that he was there on that date. Se.F. also said the statement he gave to the detective was true.

J.S. and V.S. then testified as defense witnesses. They stated that on the night of the alleged incident, they never saw defendant's gun or defendant point a gun at S.F. Defendant elected not to testify in his own defense.

As stated previously, the jury found defendant guilty of possession of a weapon for an unlawful purpose, and knowingly pointing a firearm in the direction of another, under circumstances manifesting extreme indifference to the value of human life.2

Thereafter, defendant filed a motion for a new trial. Defendant argued that the judge erred by allowing the State to reopen its case to present Se.F.'s testimony without first determining whether Se.F. had recanted his prior statement and ascertaining whether Se.F. had been properly advised by a criminal defense lawyer of the consequences of refusing to testify or recanting his statement.

The judge denied the motion. The judge ruled that Se.F.'s testimony about what defendant said to him was admissible, and defense counsel had the opportunity to question Se.F. on cross- examination and re-cross examination. The judge found that defendant had not shown that there had been a miscarriage of justice, which warranted a new trial.

The judge then sentenced defendant to five years of incarceration for possession of a weapon for an unlawful purpose, with forty-two months of parole ineligibility. The judge imposed a concurrent eighteen-month prison term for knowingly pointing the firearm at another person. The judge also imposed relevant fines and penalties, and awarded defendant 156 days of jail credits. This appeal followed.

On appeal, defendant raises the following arguments

Point I

The Trial Court Erred When It Failed to Determine Whether the Witness [Se.F.] Was Recanting and Whether the Court Should Sua Sponte Appoint Counsel to the Witness to Advise the Witness of the Legal Consequences of Recantation Before Instructing the Witness to Testify in Accordance With the Statement the Witness Had Given.

Point II

(Not Raised Below) The Trial Court Committed Plain Error When It Allowed the Prosecution to Repeatedly and Improperly Vouch for the Truthfulness of all of the State's Witnesses During Summation.

II.

We turn first to defendant's contention that the trial judge erred by failing to determine whether Se.F. was recanting the statement he gave to Detective Gilmore, and whether counsel should be appointed for Se.F. so he could be advised of the legal consequences of recanting his statement or refusing to testify. Defendant argues that a person who recants a sworn statement should be informed that if he refuses to testify in accordance with that statement, he could be exposed to criminal charges.

Defendant acknowledges that there is no court rule or case law which "dictates" what inquiry the judge should make when a situation like this occurs, but he argues that "common sense" dictates that an "independent" attorney should meet with the witness and explore whether the statement was, in fact, truthful. The attorney could then advise the witness whether the testimony is privileged and explain the potential for being charged with or convicted of certain offenses for refusing to testify consistently with the statement.

We are not persuaded by these arguments. We are convinced that the trial judge did not abuse his discretion by allowing the State to reopen its case and present testimony from Se.F. about the statements that defendant made to him about the incident of December 24, 2013. The statements attributable to defendant were reflected in the recorded statement that Se.F. gave to Gilmore. As noted, the judge questioned Se.F. as to whether he would testify consistently with the statement he provided to Gilmore, and Se.F. said he did not dispute that statement. Se.F. also told the judge that he gave the statement voluntarily.

The record shows that when Se.F. was called as a witness, his testimony differed in some respects from the statement he had given to Gilmore. The judge did not abuse his discretion by permitting the State to confront Se.F. with his prior inconsistent statements. The judge was not required to appoint counsel for Se.F. to advise him of the consequences of refusing to testify or testifying inconsistently with the prior statement he gave under oath. As the State points out, there is no indication on this record that Se.F. was in any legal jeopardy.

Furthermore, when he was cross-examined by defendant's counsel, Se.F. explained that he expected to testify at trial for defendant, not against him. He said that "this was kind of confusing" for him. He noted that defendant had called him several days before to ask that he testify that he had gone to the gun firing range earlier in the day on December 24, 2013.

Se.F. said this was not correct. He explained that he had gone to the range with defendant in November 2013, and defendant may have been mistaken as to the dates. Se.F. also said he had been subpoenaed to testify for the defense, and when he was questioned by the detective, he "honestly" thought it was about his testimony for the defense.

Thus, Se.F.'s trial testimony indicated that there were some inconsistencies with the statement he gave to Gilmore, not a wholesale recantation of the prior statement. The testimony also indicated that the inconsistencies may have been due to some confusion on Se.F.'s part, which were fully explored in the cross- examination by defense counsel.

We therefore reject defendant's contention that the judge erred by denying his motion for a new trial. As the judge found, there was not a miscarriage of justice under the law, which warranted a new trial. Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969); R. 2:10-1.

III.

We next consider defendant's contention that he was denied a fair trial due to certain alleged instances of prosecutorial misconduct. Defendant contends that during summation, the assistant prosecutor improperly vouched for the credibility of the State's witnesses.

In his summation, the assistant prosecutor asserted that there was no reason why S.F. "would come up in here" and "make this up." The assistant prosecutor stated that, "[w]e know [S.F.] has no reason to come in here and lie to you." In addition, the assistant prosecutor asserted that there was no reason why Gilmore and the other detectives involved in the investigation would come to court and lie. Because defendant's counsel did not object to the remarks when they were made, we review defendant's argument for plain error. R. 2:10-2.

We note that, when as in this case, a defendant claims that the prosecutor acted improperly, we must determine whether the "misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). To warrant reversal of a conviction on this basis, the prosecutor's conduct must have been "clearly and unmistakably improper[.]" State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

A key factor in assessing whether a defendant has been denied a fair trial is whether defendant raised a timely objection. State v. Ramseur, 106 N.J. 123, 322-23 (1987). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Timmendequas, supra, 161 N.J. at 576. In the absence of an objection, the court may infer that defense counsel did not believe the statements to be prejudicial when they were made. Ibid.

Here, the jury had been presented with testimony that provided differing versions of the events of December 24, 2013. In his summation, defense counsel challenged the credibility of the State's witnesses, and the assistant prosecutor was entitled to respond to those statements. We have held that "a prosecutor is not forced to sit idly as a defense attorney attacks the credibility of the State's witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). Furthermore, "[a] prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Here, the assistant prosecutor did not "personally vouch" for the credibility of the State's witnesses, or refer to matters outside the record as support for his statements. The assistant prosecutor merely asked the jury to consider whether, in light of the evidence presented, the State's witnesses had any reason to lie.

Although the assistant prosecutor's remarks may have been inartfully phrased, the comments were not egregious and not likely to lead the jury to a result it would not have otherwise reached based on the evidence presented at trial. As we have pointed out, defendant's counsel did not object to the remarks when they were made. Therefore, it can be inferred that defense counsel did not view the remarks as prejudicial, or so egregious that they denied defendant of a fair trial. We therefore reject defendant's contention that the assistant prosecutor's remarks concerning the credibility of the State's witnesses require reversal of his convictions.

Affirmed.

1 We use initials to identify certain individuals involved in this matter in order to protect their identities.

2 It should be noted that defendant had also been charged with second-degree possession of a handgun without having obtained a carry gun permit, contrary to N.J.S.A. 2C:39-5(b), but that charge was dismissed prior to trial.