STATE OF NEW JERSEY v. BARRETT YOUNG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4792-06T44792-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRETT YOUNG,

Defendant-Appellant.

_____________________________________________________________

 

Submitted March 5, 2008 - Decided

Before Judges Lisa and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1744.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kenneth G. Goodman, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Michael Robertson, Assistant Prosecutor, on the brief).

PER CURIAM

After a jury trial, defendant, Barrett Young, was convicted of third-degree burglary, N.J.S.A. 2C:18-2, the sole count in the indictment and sentenced to five years imprisonment with a two and one half-year parole disqualifier. The trial court ordered the sentence to run concurrently with two other five-year sentences imposed on prior indictments.

On appeal, defendant presents these arguments for our consideration:

POINT I.

THE JURY INSTRUCTION ON ORAL STATEMENTS UNDERMINED THE DEFENSE THAT THE POLICE HAD FABRICATED THE CONFESSION (Not Raised Below).

[POINT II.]

DEFENDANT'S CASE SHOULD BE REMANDED FOR A HEARING AS TO WHETHER THE CONVICTION AND SENTENCE SHOULD BE VACATED IN LIGHT OF STATE V. MEYER.

We affirm.

The facts as presented at trial reveal that Alice Fields's residence was burglarized on February 16, 2006. A video cassette recorder (VCR) and a Sony Play Station gaming system were stolen. Douglas Marshall, the investigating detective, interviewed defendant at the Newark South District Detective Squad interviewing room, where he was being questioned regarding other matters. After defendant was read his Miranda rights, he initialed the Miranda rights card and admitted to Marshall that he took "a Sony Play Station [and a] VCR." Defendant then explained "that I have nothing to lose, you know, I'm sick, I got prostate cancer, and I got to survive."

Detective Angel Perez witnessed the administration of defendant's Miranda rights, then returned to his desk, which was about four to five feet from where Marshall was interviewing defendant. Perez stated he overheard defendant tell Marshall "that he was ill, he mentioned that he had prostate cancer, that he really had nothing to lose, and he had to do what he had to do to survive." Perez did not hear defendant admit he committed the burglary.

Defendant testified on his own behalf. His position was that the police had fabricated his custodial statement admitting guilt. Defendant stated he was questioned by police for "[a]bout 2 minutes" and acknowledged initialing the Miranda card. Defendant denied involvement in any burglaries. Defendant explained he does not have prostate cancer and did not tell Marshall that he did. Defendant then recited that Perez told him:

He said his pen . . . is more powerful than his mouth. Which he's telling me I can write down some burglaries on you, because you will not talk, you shut down. You can work for us, but because you don't tell us what we want to hear, we're going to give you a burglary, and that's what they did.

He later said that Marshall was the officer that made this statement. Defendant also stated "Perez punched me in the face," hitting him on the "left side of my che[e]k."

On appeal, defendant argues that the jury instruction given was misleading because it "failed to give the jury the tools needed to evaluate the evidence" on the issue of whether defendant made a custodial statement or whether the statement was fabricated by the police. Defendant maintains the error undermined his defense and denied him a fair trial. Defendant correctly notes that erroneous jury instructions on material issues are usually presumed to be reversible error, State v. Crisantos, 102 N.J. 265, 273 (1986), as "[e]rroneous instructions are poor candidates for rehabilitation as harmless [error]." State v. Afanador, 151 N.J. 41, 54 (1997).

During the charge conference, counsel reviewed the proposed charge regarding the oral statement attributed to defendant. The proposed instruction contained a Kociolek and Hampton charge. Also, the record reflects the charge was made at the request of the defense to which the prosecutor had no objection. After the charge was issued, defense counsel offered no objection. Thus, our review is guided by the plain error standard. State v. Torres, 183 N.J. 554, 564 (2005). When a charge has not been requested by a defendant, reversal is required "only when, in the context of the entire case, the omission is 'clearly capable of producing an unjust result.'" State v. Jordan, 147 N.J. 409, 425 (1996) (quoting R. 2:10-2).

In the context of an unchallenged jury charge, "plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting Jordan, supra, 147 N.J. at 422; R. 2:10-2). Any possibility of an unjust result will not suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Further, any alleged error must be evaluated in light "of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).

Moreover, defense counsel requested and agreed with the judge's decision to present the charge as given. Accordingly, in order for us to reverse on this point, we would not only have to find plain error but would have to reverse in the face of invited error. "Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).

In Kociolek, supra, the Supreme Court held that a criminal defendant is entitled to an instruction that jurors "receive, weigh and consider . . . with caution" testimony concerning out-of-court incriminating statements made by a defendant. 23 N.J. at 421; see also State v. Harris, 156 N.J. 122, 182-83 (1998). The need for the instruction is derived from a "generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer," that renders such evidence potentially untrustworthy. Kociolek, supra, 23 N.J. at 421.

Defendant asserts because the statement was fabricated by police the issue was not the possible risk of inaccurate reporting. Thus, by failing to note the fabrication, defendant believes the charge suggested "that the only errors possible would be innocent ones by police." We reject this argument.

"When evaluating the propriety of a jury charge, an appellate court 'does not excise and examine in isolation those statements alleged to be obscure or ambiguous, but looks to the charge as a whole.'" State v. Concepcion, 111 N.J. 373, 376 (1988) (quoting State v. Freeman, 64 N.J. 66, 69 (1973)). "'[The charge must provide] a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" State v. Koskovich, 168 N.J. 448, 507 (2001) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). If the charge as a whole meets that standard, the verdict must be upheld. State v. Ramseur, 106 N.J. 123, 280 (1987).

Our review of the trial court's instruction to the jury as a whole satisfies us that the jurors understood they were to determine whether "defendant made the statements attributed to him" and as the sole and exclusive judges of the evidence, "were to determine the credibility of the various witnesses and determine whether a witness is worthy of belief." The jury was advised that defendant denied he made the statement. Additionally, the court provided a "false in one, false in all" charge, discussed how the jury should weigh discrepancies in the evidence, and on the burden of proof and "if you are not firmly convinced of the defendant's guilt, you must give defendant the benefit of the doubt and find him not guilty." Because of these instructions, along with the fact that the jury charge squarely placed the issue of the reliability of the defendant's incriminating statement before the jury, no plain error can be demonstrated. State v. Feaster, 156 N.J. 1, 73 (1998), cert. denied, sub nom. Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Defendant also seeks remand citing State v. Meyer, 192 N.J. 421 (2007), suggesting that because he was a substance abuser of marijuana, cocaine and heroin, his eligibility for participation in Drug Court should have been considered. The Court in Meyer concluded that a trial court has the discretion to admit a non-violent substance dependent defendant into Drug Court as a condition of probation, despite the defendant's ineligibility for special probation pursuant to N.J.S.A. 2C:35-14. However, unlike Meyer, defendant never applied for admission into Drug Court and Meyer provides no authority to allow consideration to enter Drug Court post-conviction.

Affirmed.

 

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

State v. Kociolek, 23 N.J. 400, 421-22 (1957).

State v. Hampton, 61 N.J. 250, 272 (1972).

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A-4792-06T4

April 1, 2008