STATE OF NEW JERSEY v. DARRELL FOSTER, a/k/a Calvin Frost, Darnell Frost et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5100-05T45100-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRELL FOSTER,

a/k/a Calvin Frost, Darnell

Frost and Darunell Frost,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 9, 2007 - Decided June 6, 2007

Before Judges Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0847.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Darrell Foster appeals from his conviction on a charge of possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10 (count one), and unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (count six). The State dismissed counts two through five approximately one month prior to trial. The court sentenced defendant to a four-year concurrent term of imprisonment on each count. Appropriate fines and penalties were imposed.

On appeal, defendant raises the following claims:

I. PROSECUTORIAL MISCONDUCT, DURING CROSS-EXAMINATION OF THE DEFENDANT, DEPRIVED HIM OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Partially Raised Below).

II. THE DEFENDANT'S AGGREGATE SENTENCE OF FOUR YEARS FOR POSSESSION OF COCAINE AND POSSESSION OF A HANDGUN IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

We disagree with both of these arguments and affirm.

I.

On January 9, 2005, Detective Elias Garcia of the Newark Police Department was conducting undercover narcotics surveillance near 49-A Broad Street with two other detectives. While Garcia was waiting for backup units to arrive to transport an individual he had arrested for narcotics activity, he noticed another person, later identified as defendant, walk into the apartment complex. According to Garcia's testimony, as soon as the marked transport van arrived on the scene, defendant recognized the police presence and tossed a clear plastic bag to the ground and then started walking toward Broadway. Garcia retrieved the discarded bag, and after discovering that it contained fourteen "jugs" of suspected cocaine, he began to pursue defendant. After a brief foot chase, defendant was apprehended. Garcia searched him, and according to his testimony, discovered a loaded .22 caliber handgun in defendant's waistband. The substance in the bag was field-tested and found to be cocaine.

Defendant testified that he was in the vicinity of 49-A Broad Street walking across the courtyard of the apartment complex to visit a friend when he was arrested because he was unable to produce any identification. He testified that although police searched him both before he was placed in the police vehicle and after he arrived at the station house, the only item found in his possession was $67. He denied running away from any police officers, maintaining that he merely "walked away," and denied possessing either the fourteen "jugs" of cocaine or the firearm allegedly found in his waistband, asserting that the first time he saw the cocaine was in court, and the first time he saw the gun was at the police station.

On cross-examination, the prosecutor asked defendant if he had lied to police about his age. The following colloquy occurred:

Q. You give 'em an age?

A. I gave my birth date, yes.

Q. And what birth date was that?

A. Eight-eight-eighty-six.

. . . .

Q. Eight-eight-eighty-six. That would make you how old today?

A. (pause). I'm 21.

Q. But 8/8/86 would make you 19.

A. Yes.

Q. So, you lied to the police officers?

Defense counsel objected, and the court sustained the objection.

Later, the prosecutor asked defendant if he had lied to police about his name. The prosecutor asked:

Q. Did you just admit today previously that you, in fact, had given a different name?

A. Yes.

Q. So, you lied, correct?

Defense counsel again objected, and again, the court sustained the objection. In his next question, the prosecutor asked defendant, "[y]ou've given different answers to straightforward questions, correct?". Defense counsel objected, and the court sustained that objection as well. The prosecutor then asked defendant whether the police officers were lying about the entire incident:

Q. But the officers are lying about this whole thing, correct?

A. Yes.

There was no objection to this last question.

Defendant called no other witnesses. The jury returned verdicts of guilty on counts one and six.

II.

In point I of his brief, defendant argues that:

each instance of misconduct independently deprived the defendant of his due process right to a fair trial, and when considered together, their cumulative effect combined to constitute a pattern of prosecutorial misconduct which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merit of his defense.

. . . .

[B]y virtue of the prosecutor's improper questioning of the defendant, the jury was asked to infer that virtually all of the police witnesses had been lying if the defendant were to be believed. This was especially prejudicial in a case where the prosecutor attempted to force the defendant to characterize his prior testimony and statements as lies. . . . By improperly trying to have the defendant characterize, as liars, virtually every police witness, the evidential scales were again improperly tipped in favor of a guilty verdict.

Where misconduct is identified, it does not constitute reversible error unless it was so egregious as to deprive a defendant of the right to a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). In determining whether a prosecutor's comments were sufficiently egregious to deny a defendant a fair trial, an appellate court should consider the tenor of the trial and the responsiveness of both counsel and the court to improprieties when they occurred. State v. Frost, 158 N.J. 76, 83 (1999). Specifically, a reviewing court must consider whether defense counsel objected in a timely and proper fashion to the remarks, whether the offending remarks were withdrawn promptly, and whether the trial court instructed the jury to disregard them. Ibid.

We reject defendant's contention that the cross-examination constituted prosecutorial misconduct. The first question defendant objects to simply asked him whether he lied to the police officers about his age. Judge Rosenberg sustained the objection. We do not view the suggestion that defendant lied about his age as having any bearing on the jury's ability to evaluate defendant's testimony that he did not have a gun or cocaine in his possession on the day in question. If this question created any prejudice, it was eradicated by the court sustaining defendant's objection. Any prejudice that might have resulted from this question, or from the later question, which asked defendant if he had given different answers to "straightforward questions," was amply cured by the judge sustaining the objection and later instructing the jury to disregard any question to which an objection was sustained.

The next aspect of the cross-examination to which defendant objects concerns the prosecutor's question asking defendant whether he had lied by giving a different name. Earlier in the cross-examination, defendant had acknowledged that he had previously testified under oath in an unrelated proceeding that his name was Darrell Frost. Unlike the question asking defendant to agree that he had lied about his age, and unlike the question asking him if he had given different answers to straightforward questions, here the court overruled defendant's objection. We do not view the prosecutor's question about defendant's use of a different name as an instance of prosecutorial misconduct because it did not appeal to passion or prejudice, nor was it inflammatory. See DiFrisco, supra, 137 N.J. at 474-75.

In the fourth question that defendant characterizes as prosecutorial misconduct, the prosecutor asked him whether "the officers are lying about this whole thing." The defense did not object to this question. The State concedes that asking a defendant to assess the credibility of another witness is prohibited. State v. Bunch, 180 N.J. 534, 549 (2004). Unlike the other three questions, this one was clearly improper.

We agree with the State, however, that although the question was improper, it was not unduly prejudicial. The entire thrust of defendant's testimony was an attack upon the credibility of the police officers. In effect, defendant suggested that police were deliberately lying when they testified that he had cocaine and a gun in his possession. His testimony that he had never seen the gun until he arrived at the police station, or the cocaine until the trial began, could not have been understood by the jury as anything other than an assertion that the police testimony was a lie, and the police were liars. The prosecutor's question asking defendant whether the police were lying "about this whole thing" was only asking him the obvious.

Moreover, there was no objection. Under these circumstances, this last question did not constitute prosecutorial misconduct, much less prosecutorial misconduct depriving defendant of his right to a fair trial, in violation of DiFrisco, supra, 137 N.J. at 474.

III.

The sentencing argument raised in point II of defendant's brief lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, Judge Rosenberg sentenced defendant to the then-existing presumptive term on each count, and ordered the sentences on each to be served concurrently. The sentence imposed did not represent a mistaken exercise of the judge's discretion. State v. Roth, 95 N.J. 334, 363-64 (1984).

The judgment of conviction specifies that the disposition was by guilty plea, rather than by trial. An amended judgment of conviction should be prepared correcting this error. No separate sentencing proceeding is required in order to do so.

 
Affirmed and remanded to correct the judgment of conviction.

Although not raised as an issue in this appeal, we note that as soon as defendant testified before the jury that he had once used the other name, the court instructed the jury that the other proceeding involved an unspecified "prior hearing." The jury was not provided with any other information about that proceeding.

(continued)

(continued)

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A-5100-05T4

June 6, 2007