STATE OF NEW JERSEY v. SHAMSID KNIGHT

This case can also be found at 369 N.J. Super. 424, 849 A.2d 209.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2933-02T42933-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAMSID KNIGHT,

Defendant-Appellant.

_______________________________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent, DOCKET NO. A-4099-02T4

v.

SHAMSID KNIGHT,

Defendant-Appellant.

_______________________________________________________________

Submitted February 10, 2004 - Decided

May 28, 2004

 
Remanded by Supreme Court June 8, 2005

Resubmitted March 22, 2006 - Decided

Before Judges Stern, Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment Nos. 02-07-2656 and 01-03-1436.

Yvonne Smith Segars, Public Defender,

attorney for appellant in both appeals

(Michael C. Kazer, Designated Counsel,

on the brief).

Zulima V. Farber, Attorney General of New

Jersey, attorney for respondent on A-2933-02T4

(Robbery); (Maura K. Tully, Deputy Attorney

General, of counsel and on the brief).

Paula T. Dow, Prosecutor of Essex County,

attorney for respondent on A-4099-02T4 (Murder);

(Gary A. Thomas, Special Deputy Attorney General,

of counsel and on the brief).

Appellant submitted a supplemental pro se brief.

PER CURIAM

In these back-to-back cases, defendant Shamsid Knight appeals from his convictions for robbery and murder. We had reversed defendant's convictions on the ground that his confessions were not voluntary. State v. Knight, 369 N.J. Super. 424 (App. Div. 2004). The Supreme Court reversed our decision, however, and remanded for our consideration on the remaining issues raised by defendant in his appeals. State v. Knight, 183 N.J. 449 (2005). The facts underlying the robbery and murder charges were set forth in our previous opinion, 369 N.J. Super. at 429- 34, and in the Supreme Court's opinion, 183 N.J. at 453-56. We need not repeat them here.

MURDER CONVICTION A-4099-02T4

POINT TWO

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S LACK OF JUDICIAL SELF-RESTRAINT DURING THE DEFENSE COUNSEL'S CROSS-EXAMINATION OF POLICE OFFICER SCOTT, INVESTIGATOR GREGORY, AND DETECTIVE MELILLO MANIFESTED A BIAS AGAINST THE DEFENDANT THAT RENDERED THE TRIAL FUNDAMENTALLY UNFAIR (NOT RAISED BELOW)

POINT THREE

THE PROSECUTOR'S VICTIM IMPACT COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT FOUR

IMPOSITION OF A NERA PERIOD OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS ILLEGAL BECAUSE THE NERA LAW THAT WAS IN EFFECT WHEN THE DEFENDANT COMMITTED THE OFFENSE DID NOT APPLY TO MURDER

Defendant argues for the first time on appeal that his conviction should be reversed because during the eight-day trial, the judge intervened during defense counsel's cross-examination of three of the State's witnesses.

Although great latitude is given to a trial court in the conduct of a trial, there are bounds within which the judge must stay. A judge must conduct the trial in a fair and impartial manner, without making remarks that might prejudice a party or which are calculated to influence the minds of the jury. A judge should never unfairly criticize or humiliate counsel, especially in front of the jury. A judge's failure to abide by these guidelines can easily prejudice a jury since it conveys the opinion of the judge as to his belief or disbelief in one side of the case. Alleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine its prejudicial impact.

[Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9-10 (App. Div.) (citations and quotation marks omitted), certif. denied, 177 N.J. 490 (2003).]

Trial judges are given wide discretion in exercising control over their courtrooms. State v. Castoran, 325 N.J. Super. 280, 285 (App. Div. 1999), certif. denied, 163 N.J. 78 (2000). Despite their wide discretion, they must scrupulously exercise judicial self-restraint and remain impartial. State v. Ray, 43 N.J. 19, 24-25 (1964). A judge who throws his judicial weight on one side during a trial abuses that wide discretion and renders the proceeding fundamentally unfair. State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002), certif. denied, 174 N.J. 193 (2002). Although the intervention of a trial judge may at times be beneficial, it must be exercised with restraint. Ibid. To promote a fluid and comprehensible trial, the judge may "properly intervene . . . to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity." Ray, supra, 43 N.J. at 25 (citations omitted).

Defendant claims that the trial judge "manifested such a strong bias against [him] and defense counsel that it rendered the trial fundamentally unfair." The specific instances about which defendant complains, but did not object at trial, are as follows.

During defense counsel's examination of Officer Scott, the judge sustained a number of objections not made by the prosecutor:

DEFENSE COUNSEL: Then eventually Mr. Knight was removed from the location, correct?

OFFICER SCOTT: Yes, he was.

DEFENSE COUNSEL: And an individual by the name of Detective Melillo, he came on the scene, correct?

OFFICER SCOTT: It's possible.

DEFENSE COUNSEL: Didn't you talk to Detective Melillo about what you said happened that night?

THE COURT: Sustained. At what point [defense counsel]?

DEFENSE COUNSEL: After Mr. Knight was removed did you have an opportunity to speak with a Detective Melillo?

THE COURT: Sustained. At the scene, at the precinct, where?

DEFENSE COUNSEL: At the scene?

THE COURT: Thank you ma'am.

OFFICER SCOTT: It's possible. I don't recall. I spoke to a lot of people. I'm not exactly sure. Possible.

DEFENSE COUNSEL: Spoke to a lot of people about what you claimed happened that night?

THE COURT: Sustained.

During the cross-examination of Investigator Gregory, defendant contends that the trial court again sustained objections that were never made by the prosecutor:

DEFENSE COUNSEL: So it was known Mr. Casimir had expired prior to even the ME [medical examiner]?

THE COURT: Sustained, [defense counsel], to the form of that question.

. . . .

DEFENSE COUNSEL: It was cold and it was dark and there was snow on the ground and Mr. Knight had -

THE COURT: The witness didn't say all that. Can't mischaracterize. Repeat your question please.

. . . .

DEFENSE COUNSEL: The location Lincoln Street and the other scenes where the shootings took place?

THE COURT: Sustained. Please be more particular with the question.

. . . .

DEFENSE COUNSEL: There was an effort to locate items?

THE COURT: [Defense counsel], ask the witness what he did or he knows please.

. . . .

DEFENSE COUNSEL: Now, Mr. Knight had been taken into custody at approximately 3:30 or so, correct, or at least -

THE COURT: Sustained.

. . . .

DEFENSE COUNSEL: Well, he said something happened. Did anyone write that down?

THE COURT: Sustained.

. . . .

DEFENSE COUNSEL: Do you remember the answer: I was -

THE COURT: Sustained.

DEFENSE COUNSEL: Excuse me, judge.

THE COURT: Sustained. The answer is hearsay.

. . . .

DEFENSE COUNSEL: Now, isn't it a fact that finally a detective came, detective from Newark?

THE COURT: Sustained to the form of the question.

. . . .

DEFENSE COUNSEL: Again I would refer you to page 16 of your testimony on September 20th, 2002.

THE COURT: The witness has answered the question in the proper format, [defense counsel]. Sustained.

. . . .

DEFENSE COUNSEL: Now, isn't it accurate to say that by 12:10, Detective Melillo had spoken with the Police Officers Parkman and Scott?

THE COURT: Sustained [defense counsel]. You're asking this witness to tell you what someone else did.

DEFENSE COUNSEL: Did Detective Melillo tell you he spoke with Officer Scott and Parkman?

THE COURT: Sustained, [defense counsel].

. . . .

DEFENSE COUNSEL: Isn't it also a fact that at some point police cars were sent to the location to attempt to locate persons who may have been involved in a robbery on that?

THE COURT: Sorry. Are you asking this witness what he did?

DEFENSE COUNSEL: Let me rephrase it. Were you advised that there were officers attempting to locate persons involved in a robbery at that location on Lincoln Street?

INVESTIGATOR GREGORY: I have no knowledge of a robbery.

THE COURT: Ladies and gentlemen, please disregard the last question.

DEFENSE COUNSEL: Were you advised -

THE COURT: Sustained. It's hearsay.

. . . .

DEFENSE COUNSEL: Were you advised of female items outside the truck?

INVESTIGATOR GREGORY: Not that I recall.

DEFENSE COUNSEL: Were you ever -

THE COURT: Please ask the witness what he did please. Let's refrain from the hearsay aspect of the testimony. Continue.

DEFENSE COUNSEL: After the statement was taken from Mr. Knight did anyone fingerprint the gun that was recovered?

THE COURT: Sustained.

. . . .

DEFENSE COUNSEL: And not one of those police officers or detectives bothered to record anything he said?

THE COURT: Sustained, ma'am.

DEFENSE COUNSEL: To your knowledge?

INVESTIGATOR GREGORY: To my knowledge.

THE COURT: Sustained. Don't have to answer that question. Asking him to guess.

. . . .

DEFENSE COUNSEL: You didn't write anything down then, correct?

INVESTIGATOR GREGORY: I wrote down certain things.

DEFENSE COUNSEL: Is it here?

INVESTIGATOR GREGORY: No. It's not here.

DEFENSE COUNSEL: Can you get it?

INVESTIGATOR GREGORY: No. I can't.

THE COURT: Sustained.

During Detective Melillo's testimony, defendant contends that the judge continued to sustain objections not made by the prosecutor:

DEFENSE COUNSEL: And this waiver that you were successful in obtaining did not come until approximately -

THE COURT: Sustained. No foundation he obtained its [sic].

. . . .

DEFENSE COUNSEL: So all this happened in 15 minutes. Can you tell the jury -

THE COURT: Sustained, [defense counsel]. I don't want to admonish counsel. You know full well that you can't testify. Ask him the question, if you want, to a conclusion.

. . . .

DEFENSE COUNSEL: [L]et me ask you this. Mr. Knight had originally been charged with assault on police officers and [a] weapons charge, correct?

THE COURT: Sustained. Been there already, [defense counsel], concerning that.

We note initially that defendant does not argue that the judge made evidentiary errors in his sustaining objections not made by the prosecutor. In other words, if the objections had been made, defendant does not argue that they should have been overruled. More importantly, defendant failed to include in his excerpts of the transcript the following exchange concerning the judge's sustaining objections that were not made:

DEFENSE COUNSEL: Now, all these officers were around Mr. Knight. Isn't it a fact that Mr. Knight was attempting to tell these officers and detectives what he said happened when he was in that Lincoln Navigator?

PROSECUTOR: Objection

THE COURT: Basis.

PROSECUTOR: Your Honor, she's asking what the defendant said to these officers and Investigator Gregory already indicated that he wasn't in the presence of those officers when he's giving the information.

THE COURT: All right. Do you understand the question?

THE WITNESS: Think I do.

THE COURT: Would you please repeat the question?

This exchange indicates that in several instances the judge was merely expediting the cross-examination by sustaining the prosecutor's already-made objection without requiring her to repeat the objection in each instance.

A trial judge is not required to sit on her hands during trial, rather, her "participation is one which rests in discretion and depends upon the circumstances of a particular case." State v. Riley, 28 N.J. 188, 201 (1958), cert. denied, 361 U.S. 879, 80 S. Ct. 166, 4 L. Ed. 2d 117 (1959). We must examine the complained-of conduct in the context of the entire record. Persley, supra, 357 N.J. Super. at 9-10.

After carefully considering the record, we are satisfied that the trial judge's intervention in these instances during this eight-day trial did not exceed the bounds of his discretion. Castoran, 325 N.J. Super. at 285. We find no undue prejudice to defendant from the judge's intervention. Given the evidence, we are convinced that to the extent the judge's intervention was in any way excessive, it was not capable of changing the outcome of the trial.

Defendant next argues, again for the first time, that the prosecutor's comments during summation deprived him of a fair trial. Specifically, defendant complains of the following remarks:

PROSECUTOR: Andrew Casimir gets killed because he wants to be a law abiding citizen. Andrew Casimir only wants to pull over for the police and what happened? Because he wants to follow the laws, he winds up dead.

. . . .

PROSECUTOR: It was the defendant who shot him and left those bullets in him leaving Mr. Casimir dead. Mr. Casimir no longer able to be a husband to a wife. No longer able to be a father to a son. Because why? Because he didn't want to pull over. He didn't want to pull over for the police. Because he didn't want him to stop. So he killed him.

Because defendant raised no objection to the State's closing argument at trial, we must disregard any error unless it is "'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2). Reversal of defendant's conviction is required only if there was error "'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Daniels, supra, 182 N.J. at 95 (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

In determining whether a prosecutor's comments deprived the defendant of a fair trial, we "consider '(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" Daniels, supra, 182 N.J. at 96-97 (quoting State v. Smith, 167 N.J. 158, 182 (2001)). Where there was no objection at the time of trial there is an inference that defense counsel did not view the summation as prejudicial in the context of the trial. State v. Frost, 158 N.J. 76, 83 (1999).

Prosecutors may argue the State's case forcefully but must "'refrain from improper methods calculated to produce a wrongful conviction.'" Id. at 82-83 (quoting State v. Farrell, 61 N.J. 99, 105 (1972)). Her argument must be based on the evidence and reasonable inferences therefrom.

Reviewing the prosecutor's remarks in the context of the entire summation, it is apparent to us that her references were to the reasons for the shooting deduced from the evidence at trial. We do not regard the remarks as unduly inflammatory or prejudicial to defendant. We see nothing in the remarks "'sufficient to raise a reasonable doubt as to whether [they] led the jury to a result it might not otherwise have reached.'" Daniels, supra, 182 N.J. at 95 (quoting Macon, supra, 57 N.J. at 336).

With respect to his sentence, defendant argues that the imposition of an 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was illegal. The prosecutor agrees and so do we. At the time of defendant's crime, NERA did not apply to a murder conviction. State v. Manzie, 335 N.J. Super. 267, 276 (App. Div. 2000), aff'd, 168 N.J. 113 (2001). Accordingly, we remand for the trial court to amend the judgment of conviction with respect to the length of the parole ineligibility term.

In his pro se brief on the murder charge, defendant argues:

POINT ONE

DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES WAS VIOLATED CAUSING PLAIN ERROR.

POINT TWO

THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED IN THE COURT'S ABUSE OF POWER, WHEN IT SUBSTITUTED DEFENDANT'S APPOINTED REPRESENTATION AT A CRITICAL TRIAL STAGE, THUS CAUSING PLAIN REVERSIBLE ERROR.

POINT THREE

THE DEFENDANT ALSO RAISES CLAIM OF CONSTITUTIONAL ERROR WHEN HE WAS DENIED PARTICIPATION IN HIS OWN TRIAL.

POINT FOUR

DEFENDANT CONTENDS THAT IT WAS IMPROPER AND PREJUDICIAL TO ALLOW THE STATE TO INTRODUCE IN EVIDENCE A PHOTOGRAPH/OR PHOTOGRAPHS OF DECEDENT THAT WAS REPEATEDLY OBJECTED TO BY DEFENDANT'S ATTORNEY.

POINT FIVE

ON APPEAL THE DEFENDANT MOVES FOR AN ORDER REQUIRING THE PROSECUTOR TO TURN OVER STATE'S EVIDENCE FOR DNA TESTING PURSUANT TO RULE 2:9-1.

POINT SIX

THE DEFENDANT ARGUES THAT THE INTERROGATION OF DETECTIVE DEMAIO WAS A VIOLATION OF THE DUE PROCESS OF FUNDAMENTAL FAIRNESS OF THE FOURTEENTH AND FIFTH AMENDMENTS.

POINT SEVEN

ON APPEAL THE DEFENDANT CONTENDS THAT HIS GUILTY PLEA TO BANK ROBBERY CHARGES COULD BE SET ASIDE BECAUSE IT DID NOT HAVE AN ADEQUATE FACTUAL BASIS.

We have carefully considered defendant's pro se arguments in light of the applicable law and we are satisfied that they have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Defendant's ineffective assistance of counsel argument refers to Friday, October 18, 2002, when defense counsel received a phone call regarding a personal emergency and James Jukes, Esq., substituted for her during the remainder of the afternoon and the following Monday when the jury reached a verdict. The jury had been charged and was deliberating when Mr. Jukes entered the case. Several jury questions had already been asked and answered. A few minutes after Mr. Jukes substituted for defense counsel on Friday, the jury was discharged for the day. When the jury returned on Monday, October 21, 2002 for continued deliberations, Mr. Jukes continued to substitute for defense counsel. At 10:28 a.m., the jury sent a note to which the judge responded by re-reading the instruction regarding unaminity of their decision on each element of the murder charge. At 11:10 a.m., the jury rendered its verdict.

Defendant argues that because he never met Mr. Jukes before October 18, 2002, or discussed the case with him, defendant was denied his Sixth Amendment right to effective assistance of counsel when the jury asked the last question on Monday before rendering a verdict.

To demonstrate ineffective assistance of counsel, a defendant must show (1) that trial counsel's performance was so incompetent that it deprived him of his constitutional rights; and (2) but for counsel's incompetence, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 694-95 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). A claim for ineffective assistance of counsel must be established by a preponderance of the credible evidence. State v. McQuaid, 147 N.J. 464, 483 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992)).

Defendant claims that Jukes' failure to object to the trial judge's response to the jury question on the morning of October 21 somehow prejudiced him. Nothing in the record supports his argument. Defendant has not demonstrated any prejudice whatsoever from Mr. Jukes' substituting for defense counsel in the last moments of the trial. The jury had already been charged and was deliberating, and the jury question on Monday was appropriately answered by the trial judge. We find no merit in his claim.

ROBBERY CONVICTION A-2933-02T4

After his conviction on the murder charge, defendant pled guilty to two counts of first degree robbery, N.J.S.A. 2C:15-1; three counts of second degree robbery, N.J.S.A. 2C:15-1; and one count of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 15-1. The conspiracy count was merged into the robbery counts and defendant was sentenced to an aggregate term of twenty years subject to 85% parole ineligibility pursuant to NERA and 50% parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c. The sentences were made concurrent to each other and with the sentence on the murder conviction.

In the robbery appeal, defendant's only remaining argument after the Supreme Court's decision is:

POINT II - IMPOSITION OF THE TWENTY (20) YEAR EXTENDED TERM SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR SECOND DEGREE ROBBERY ON COUNTS FOUR AND SIX WERE ILLEGAL BECAUSE THE COURT HAD ALREADY IMPOSED AN EXTENDED TERM SENTENCE ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE ROBBERY ON COUNT TWO.

Here, defendant was sentenced to concurrent discretionary extended twenty-year terms on each of the second degree robbery counts. We agree that an extended term may not be imposed on more than one count. State v. Papasavvas, 163 N.J. 565, 627 (2000) (holding that "a court may impose only one extended term on one sentencing occasion"). Accordingly, we remand to the trial court for amendment of the judgment of conviction on Counts Four and Six. We note, however, that this will have no affect on the aggregate term imposed on defendant.

Defendant's convictions on the murder (A-4099-02T4) and robbery (A-2933-02T4) charges are affirmed; the sentences on both appeals are remanded to the trial court for amendment in accordance with this decision.

 

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A-2933-02T4

August 7, 2006