STATE OF NEW JERSEY v. VIRGIL MITCHELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0227-06T40227-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VIRGIL MITCHELL,

Defendant-Appellant.

 

Submitted January 28, 2008 Decided

Before Judges Lintner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0384.

Yvonne Smith Segars, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury, defendant, Virgil Mitchell, was convicted on an Essex County indictment of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), (2), as a lesser included offense of count one; felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven). Anthony Clark, his co-defendant, was acquitted of charges of hindering prosecution, tampering with physical evidence as well as unlawful possession of a weapon. This appeal followed. We affirm.

On May 9, 2005, defendant was sentenced on the felony murder count to a term of thirty years of imprisonment subject to thirty years of parole ineligibility. The aggravated manslaughter and first-degree robbery of Serge Guerrier and the first-degree robbery of Joseph Medlin, were merged into count two, felony murder. The fourth-degree aggravated assault as to Joseph Medlin, and the second-degree possession of a weapon for an unlawful purpose, were also merged into count two. On count six, the unlawful possession of a weapon charge, defendant was sentenced to four years in prison to run concurrent with the sentence on count two. Appropriate fines and penalties were imposed as a result of these offenses.

During the evening of September 27, 2002, Shaniqua Jones drove defendant and his friend, Duwan Jeter, from an abandoned house where the men had been drinking and smoking marijuana, to a White Castle restaurant. While there, defendant briefly spoke to an acquaintance, Isaac Eason, a policeman working a second job at the White Castle as a security guard. After leaving the restaurant, Jones dropped Jeter off.

Hours later, in the very early morning of September 28, Joseph Medlin, Serge Guerrier, Kenny Guerrier, and Serge and Kenny Guerrier's uncle, Illich, decided to visit a strip club around the corner from the home of Kenny's then girlfriend. Kenny headed in one direction to the strip club, while Medlin, Serge, and Illich took a different path. A maroon or burgundy car was driven past the three men as they walked. As it passed by, Serge shouted at the young woman who was driving the vehicle.

Shortly thereafter, the driver pulled over, and a man Medlin later identified as defendant exited the vehicle. He approached and offered to sell marijuana to the three men. Serge asked him what he had. Defendant said he had bags for fifteen dollars, and Serge asked if he could see them. Defendant left to retrieve the marijuana and Illich walked back to Kenny's girlfriend's home. Medlin and Serge remained on the corner waiting for defendant, who returned and showed them the marijuana. The men began to negotiate over the price.

Serge offered to take two bags for ten dollars. Defendant laughed at the offer and demanded fifteen dollars per bag. Serge asked to examine the marijuana more closely and to smell it. As he opened the bags, defendant circled around in back of him and pulled out a gun. Defendant demanded Serge's gold chain and said, "[G]ive me everything you got." Serge became argumentative, and told defendant he was not going to give him anything. At that point Medlin heard a gunshot, and saw Serge "buckle back" and stagger to the ground. Defendant knelt down, took the chain from the prone victim and started going through his pockets.

When he finished searching Serge's pockets, defendant looked up at Medlin, who immediately threw his hands up into the air. Defendant patted Medlin around the waist, searched his pockets, took his cell phone and money and headed back across the street. Medlin ran back to Kenny's girlfriend's house, yelling that Serge had been shot and that they needed to call 911. Serge was pronounced dead a few hours later at the hospital. Medlin was able to identify defendant's photo from mug shot books and, based on that identification, an arrest warrant was issued.

According to Jones, that same morning, defendant called together several of his friends. At the meeting, he allegedly told Jones that he wanted her to "lie on the stand." Defendant also admitted shooting someone, and robbing the victim of $800 and a chain. Defendant actually gave the chain to Jones, who passed it on to another person. Jones said that in later conversations with defendant, he denied having killed anyone. Jones did not come forward until March 2003.

The arrest warrant, based on Medlin's identification, issued for defendant on September 28, 2002. On October 2, 2002, at approximately 5:00 a.m., defendant turned himself into the Orange Police Department where he was arrested and placed in a holding cell. He refused to give a formal statement and would not sign a Miranda waiver. Defendant did, however, inform the investigating officers that he had gone to a White Castle with Jones and Jeter on the night of the shooting, and had seen Eason there that night. Eason later arrived at the station at defendant's request and spoke to defendant. Defendant then completed a written Miranda waiver, but denied any wrongdoing. He only told the investigating officers to speak to Jones and Jeter because they would corroborate his innocence.

Defendant raises the following points in his brief:

POINT I

DEFENDANT'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE OBTAINED DURING CUSTODIAL INTERROGATION WITHOUT NOTICE THAT AN ARREST WARRANT HAD ISSUED AGAINST HIM AND WITHOUT EVIDENCE THAT HE OTHERWISE KNEW ABOUT THE WARRANT. (Not Raised Below.)

POINT II

THE STATE MAINTAINED THAT, DURING INTERROGATION, DEFENDANT SAID HIS FRIEND DUWAN JETER COULD EXCULPATE HIM, BUT DEFENDANT DID NOT CALL JETER AS A WITNESS AT TRIAL. THE PROSECUTOR COMMITTED MISCONDUCT IN HIS SUMMATION BY: INFORMING THE JURY THAT JETER HAD ATTENDED THE TRIAL; IMPLYING THAT DEFENDANT DID NOT CALL JETER BECAUSE HIS TESTIMONY WOULD NOT HAVE AIDED HIM; AND SUGGESTING THAT DEFENDANT BORE A BURDEN OF PROOF.

POINT III

THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL WHEN THE PROSECUTOR'S INVESTIGATOR SPOKE TO THE PROSECUTOR'S KEY WITNESS DURING A BREAK IN THE WITNESS'S TESTIMONY.

POINT IV

THE STATE IMPROPERLY INFORMED THE JURY THAT "A WARRANT ISSUED" FOR DEFENDANT'S ARREST. (Not Raised Below.)

In a supplemental pro se brief, defendant also raises these additional issues:

POINT I

APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY FREE OF TAINT FROM EXTRANEOUS INFLUENCES. [PARTIALLY RAISED BELOW].

POINT II

APPELLANT WAS DENIED A FAIR TRIAL BY THE ABSENCE OF AN INSTRUCTION REQUIRING JURORS TO SCRUTINIZE THE TESTIMONY OF SHANIQUA JONES UNDER THE "ACCOMPLICE RULE." [NOT RAISED BELOW].

POINT III

APPELLANT WAS DENIED A FAIR TRIAL WHEN THE COURT FAILED TO INSTRUCT THE JURY THAT MERE PRESENCE AT THE SCENE OF A CRIME IS NOT, BY ITSELF, PROOF OF GUILT. [NOT RAISED BELOW].

POINT IV

APPELLANT WAS DENIED A FAIR TRIAL BY REPEATED REFERENCES TO HIS HAVING BEEN CONFINED IN JAIL WHICH WERE ADMITTED WITHOUT ANY CAUTIONARY OR LIMITING INSTRUCTION. [NOT RAISED BELOW].

POINT V

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PERCEIVE OR PRESERVE CONSTITUTIONAL ERROR FOR APPEAL.

POINT VI

CONSIDERATION OF ISSUES RAISED FOR THE FIRST TIME ON APPEAL IS WARRANTED TO ADDRESS ERRORS OF CONSTITUTIONAL DIMENSION AFFECTING APPELLANT'S RIGHT TO A FAIR TRIAL.

POINT VII

THE CUMULATIVE EFFECT OF THE ERRORS, COMBINED WITH TRIAL COUNSEL'S OMISSIONS, DEPRIVED APPELLANT OF A FAIR TRIAL.

Defendant's first point is that his statements should have been suppressed as they were obtained during a custodial interrogation conducted without him being told that an arrest warrant had issued, contrary to the requirements of State v. A.G.D., 178 N.J. 56, 68-69 (2003) (holding that an interogatee must be informed if "a criminal complaint or arrest warrant has been filed or issued"). In this case, however, defendant turned himself in to police because he knew he was wanted, and was processed at the station after his arrival. He was placed in a holding cell for several hours before he was interviewed. It is abundantly clear from these circumstances that defendant knew he was under arrest for the offense of murder before any investigators spoke to him. This point does not merit further discussion. R. 2:11-3(e)(2).

Defendant's second point stems from the fact that the prosecutor, during summation, mentioned that defendant had not called Jeter as a witness. Defendant contends that this reference to Jeter would have caused the jury to believe Jeter was not called because Jeter's testimony would have been damaging.

Defendant's trial counsel objected to this comment immediately after it was begun and asked for a curative instruction, but the request was declined by the judge. The comment, it is contended, was particularly egregious because the prosecutor had actually begun to refer to Jeter's actual presence on defendant's side of the courtroom when he was interrupted by the objection. While testifying, however, Jones had actually pointed to Jeter, and she said that he was present in the courtroom, so the jury knew, before the prosecutor mentioned it, who he was and that he was there. Thus, the brief words uttered by the prosecutor did not improperly provide the jury with new information outside the evidence.

There is no rational basis to conclude that the jury would think that there was some nefarious reason for defendant's failure to call Jeter. Thus, defense counsel's request for a Clawans charge to prevent the jury from drawing an adverse inference against defendant for his failure to call Jeter as a witness was properly denied. No such charge was necessary.

Defendant also claims the jury would have impermissibly concluded from the prosecutor's remark that he carried a burden of proof in the case. The judge, as required in both the opening and closing charge, explained to the jury that the burden of proof was beyond a reasonable doubt, that it never shifts from the defendant and that defendant has no burden of proof. The remarks made by the prosecutor were brief, innocuous, and certainly far from prosecutorial misconduct. See State v. Frost, 158 N.J. 76, 83 (1999) (describing the leeway given to prosecutors during summation). The remarks did not impermissibly shift the State's burden to defendant.

We next consider defendant's argument that a mistrial should have been granted because during a break in Medlin's cross-examination, defense counsel saw him speaking in a public hallway with one of the prosecutor's investigators. The defense attorney said the conversation was witnessed by jurors who were standing in the area. No order of sequestration had been previously entered. Defense counsel moved for a mistrial, but the request was denied due to the State's representation that both Medlin and the investigator had been told not to discuss the case or the testimony with anyone. The judge thereafter entered a sequestration order, but did nothing further about the incident. No one requested that Medlin or the investigator be queried about their conversation, and the judge did not do so. At the point when Medlin was seen talking to the investigator, he had already completed his direct examination and was halfway through his cross-examination.

"'[T]he reason for sequestration is to prevent prospective witnesses from hearing what the other witnesses detail in their evidence, for the less a witness hears of another's testimony the more likely is he to declare his own knowledge simply and unbiased.'" State v. Miller, 299 N.J. Super. 387, 399 (App. Div.) (quoting State v. DiModica, 40 N.J. 404, 413 (1963)), certif. denied, 152 N.J. 464 (1997). Orders of sequestration are considered to be discretionary with the trial court. Ibid. (citing DiModica, supra, 40 N.J. at 413). The appropriate remedy for the violation of a sequestration order by the State, if it results in a sufficient breach, may be a mistrial or the exclusion of testimony by the court of the offending witness. State v. Tillman, 122 N.J. Super. 137, 143 (App. Div.), certif. denied, 62 N.J. 428 (1973).

In this case, no sequestration order was in effect. The most important aspect of Medlin's testimony, his eyewitness account, had already been given. It would have been more prudent for the trial judge to have briefly queried both the investigator and Medlin outside of the presence of the jury about their conversation, for the benefit of the record if for no other reason. But in any event, the timing of the encounter made a mistrial unnecessary.

The last point asserted for our consideration is that by informing the jury that a warrant was issued for defendant's arrest and that there was a delay between the issuance of the warrant and the arrest, the State impermissibly tainted the proceedings. There is nothing inherently prejudicial about a prosecutor making reference to properly issued arrest warrants, nor eliciting testimony about them. State v. McDonough, 337 N.J. Super. 27, 32-33 (App. Div.), certif. denied, 169 N.J. 605 (2001). As was explained in State v. Marshall (Marshall III), 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), "[w]e are satisfied that a properly instructed jury will not presume guilt based on the issuance of a . . . warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." As long as the existence of the warrant was not raised to mislead the jury, it is not improper, and it was certainly is not plain error, for reference to be made to it. Ibid. The passing mention made of the arrest warrant in this case were therefore not improper.

The State discussed the lapse of time between the homicide and the arrest in the context of explaining that defendant would have had the opportunity to dispose of a weapon, and any other evidence, well in advance of turning himself in. Given the context, there was no error, much less plain error, as a result of the mention of the delay between the issuance of the warrant and the arrest.

In the main, defendant's pro se arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The majority of his contentions focus on ineffective assistance of counsel and are more properly raised at a post-conviction relief proceeding. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record."). The following brief comments will nonetheless be made.

Defendant contends that he was deprived of a fair trial because the judge did not sua sponte give jurors the accomplice rule charge. That charge is not typically given unless requested by defense counsel because of possible prejudice to a defendant. State v. Gardner, 51 N.J. 444, 460-61 (1968); State v. Begyn, 34 N.J. 35, 54-56 (1961). The instruction states in part:

If you believe this witness to be credible and worthy of belief, you have a right to convict the defendant on (his/her) testimony alone, provided, of course, that upon a consideration of the whole case, you are satisfied beyond a reasonable doubt of the defendant's guilt.

[Model Jury Charge (Criminal), "Accomplice Testimony" (1999).]

Defendant's theory of the case was that Jones was testifying because she wanted revenge on her former boyfriend, co-defendant Clark, and his friends. To tell the jury that they could convict defendant based on Jones's testimony alone would certainly have run counter to this theory. Contrary to defendant's argument, the instruction would have only hurt his case, not helped it.

Defendant also contends that he was denied a fair trial because the court did not instruct the jurors that mere presence at the scene of a crime is not by itself, proof of guilt. This instruction is only given where a defendant is charged under a theory of accomplice liability, not in instances such as this where defendant was charged with the killing as a principal. Therefore, it was not error to have omitted the instruction.

Defendant also contends that he was denied a fair trial because no limiting instruction was given to the jury after Jones made reference to visiting him at the jail. While knowledge of a defendant's incarcerated status may, in some instances, undermine the presumption of innocence to which each defendant in a criminal matter is entitled, "passing reference[s] to a defendant's incarcerated status" do not automatically diminish the presumption. State v. Martini, 131 N.J. 176, 236 (1993) (citing State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985)). Even a direct question regarding the custodial status of a defendant is not automatic grounds for a mistrial, nor for a sua sponte curative instruction. Id. at 235-38; Childs, supra, 204 N.J. Super. at 651-52. Therefore, references to his incarcerated status were harmless.

Defendant also objects that the cumulative effect of errors deprived him of a fair trial. No errors were committed, therefore there was no cumulative effect that was prejudicial.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Clawans, 38 N.J. 162, 170-173 (1962) (stating that a charge may be given to the jury as to the failure of either the prosecution or defense to call a particular available witness to testify at trial).

(continued)

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A-0227-06T4

April 4, 2008