STATE OF NEW JERSEY v. BRANDON MEADOWS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3860-07T43860-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON MEADOWS,

Defendant-Appellant.

_________________________________________

 

Submitted October 1, 2009 - Decided

Before Judges Graves, Sabatino and Newman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-04-1142 and 07-04-1143.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay Bernstein, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

An Essex County Grand Jury indicted defendant, Brandon Meadows, under Indictment No. 07-04-1143, on one count of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b and under Indictment No. 07-04-1142 with co-defendant, Marlin Hinnant, for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (counts two and three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count four); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3f (count nine).

Defendant moved to suppress his statement to the police regarding the location of the weapon recovered from his front coat pocket. That motion was denied and a trial before a jury commenced. After some testimony during trial, defendant requested that the court reconsider its denial of the motion to suppress evidence. The court again denied defendant's motion. At the close of the State's case, the court dismissed counts three and four of Indictment No. 07-04-1142, upon the State's request. The trial judge denied the defense motion to dismiss counts one and two of Indictment No. 07-04-1142. The jury found defendant guilty of counts seven and nine on Indictment No. 07-04-1142 and acquitted defendant on all other remaining charges on this indictment. In a second trial, the jury found defendant guilty of count one on Indictment No. 07-04-1143, second-degree possession of a weapon by a convicted felon.

Declining to impose a discretionary extended term, the trial judge sentenced defendant to ten-years imprisonment with five years of parole ineligibility on count one of Indictment No. 07-04-1143 and on count seven of Indictment No. 07-04-1142, five years flat to run concurrent to the sentence on count one, and on count nine of the same indictment, eighteen months flat to run concurrent to the aforementioned sentences. The court imposed all appropriate fines and penalties. Defendant appeals. We affirm.

The relevant facts may be summarized as follows. On January 10, 2007, at approximately 11:30 a.m., two men robbed Taylor Auto Parts in Newark, holding an employee, Paul Burnell, at gunpoint. Burnell testified that he was on the telephone when a black male entered the shop, pointed a gun to his chest, and demanded cash. Another man, also armed with a handgun, approached Louis Rodriguez and Stanley Farms, two other employees who were in the shop at the time. Burnell turned over two bundles of cash wrapped in red rubber bands, totaling approximately $4,000 to the gunman. Burnell testified that this was his usual method of carrying cash, but that he usually used brown rubber bands.

Though Burnell was unable to identify the gunmen in court, he testified that one of the men had dreadlocks. In a statement to police, he described one gunman as "a black male, about 6'2" in height, in [h]is [thirties], wearing a black puffy jacket, blue jeans . . . [with a] scruffy face with pock marks, armed with a black handgun." Burnell described the second gunman as "5'10" in height, wearing dark clothing."

The robbery lasted three to five minutes; the gunmen then left the store. Burnell did not see whether the men walked, drove, or ran away; neither did he see in which direction they headed. Rodriguez and Farms, however, saw the men walk away, and they exited the store, approximately a minute and a half after the gunmen, to pursue them.

According to Officer Manuel Velez of the Newark Police Department, the Newark Police Department received a report of a robbery in progress at Taylor Auto Parts at approximately 11:26 a.m. Velez responded to the scene. Burnell told Velez that he had been robbed, and he provided Velez with a description of the perpetrators.

Meanwhile, Farms and Rodriguez drove around the area looking for the gunmen. After driving for about five blocks, Rodriguez noticed a car, with two black males inside, one of whom had dreadlocks, pull in front of Farms's and Rodriguez's vehicle. Rodriguez believed that the men inside the car were the same men who had robbed the auto shop. They followed the car to Martin Luther King Boulevard and High Street, where the two occupants of the vehicle exited and walked to the front of a building in the middle of the block. Farms and Rodriguez drove past the building to the end of the block, keeping the men in sight.

At that time, Detective Frank Martinez of the Newark Police Department was driving to the courthouse in an unmarked police vehicle with Detective Rafael Ramos in the passenger seat and two other detectives in the back seat. All of the detectives were wearing "plain clothes." While stopped at a traffic light on the corner of Martin Luther King Boulevard and Spruce Street, Rodriguez and Farms flagged down the officers. Rodriguez told the detectives that Farms had been robbed and that the men who had robbed them were down the street. The officers then followed Farms's and Rodriguez's vehicle until Farms and Rodriguez screamed and pointed out two men standing on the street to the officers.

After Farms and Rodriguez pointed out the two men they believed to have robbed the store, Ramos exited the vehicle. The suspected robbers, one of whom was defendant, were walking northbound on Mohammed Ali Avenue. Ramos ordered them to stop, and the men ran away. Ramos did not recall whether he verbally identified himself as a police officer; Ramos's police badge was displayed, however, as he wore it around his neck. Ramos chased defendant.

At a pre-trial suppression hearing, Ramos testified that he did not have his gun drawn when he approached and chased defendant. At trial, however, Ramos testified that he drew his weapon when defendant began running. Defense counsel pointed out this discrepancy in testimony to the jury.

Due to an error with the tape recording of the pre-trial suppression motion hearing, the transcript is not clear as to whether Ramos testified that he had never lost sight of defendant during the chase. The motion judge, however, indicated in his ruling that the court believed Ramos had lost sight of defendant at some point during the chase.

At trial, after Ramos testified that he never lost sight of defendant, the prosecutor stipulated to that fact. The defense argued that at the suppression hearing, the court was under a misimpression as to whether Ramos had lost sight of defendant during the chase and admitted the evidence at issue under the public safety exception to the Miranda ruling because of that misimpression.

A uniformed Newark police officer, Willie Caldwell, responded to Martin Luther King Boulevard when he heard reports of persons with a weapon over the police radio. He also participated in the chase of defendant. Caldwell and Ramos approached defendant from different directions, meeting at 751 Martin Luther King Boulevard. Ramos and Caldwell followed defendant into the basement of the building at that address. Ramos testified:

We found [defendant] in the back -- he was at the back part of the laundry room. That's when I ordered him to come out with his hands up, ordered him on the ground, approached him, cuffed him, turned him over for a pat down. Then I asked him where was the gun, and he told me that the gun was in his right coat pocket.

Ramos also described the chase during testimony at the pre-trial hearing:

We chased him into . . . that basement laundry room. He was caught in the back. He didn't have no way out. At gunpoint we ordered him to put his hands up. We ordered him to lay down on the ground as we deemed it was cleared at that point. We proceeded to handcuff him. I flipped him over for a patdown [sic] at that moment because of

. . . the allegation of the robbery and the gun possession. . . . I proceeded to do a patdown [sic] and I asked him if he had -- where was the gun. At that moment he said it was in his right coat pocket. I reached in the right coat pocket and pulled out a gun, a loaded weapon.

Ramos had not read defendant a Miranda warning prior to asking him where the gun was. Ramos retrieved a .45 caliber handgun, loaded with hollow point bullets, from defendant's right coat pocket. Defendant did not have a permit to purchase or carry a firearm. Police also recovered $2,400 in $100 bills wrapped in red rubber bands on defendant's person.

Officers Miguel Sanabria and Manuel Soto arrested co-defendant, Marlin Hinnant. Following the arrest, Farms identified defendant and Hinnant as the men who robbed the auto parts shop.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT IMPROPERLY PERMITTED THE STATE TO INTRODUCE A STATEMENT BY THE DEFENDANT MEADOWS REGARDING THE LOCATION OF THE GUN USED IN THE ALLEGED ROBBERY SINCE THE STATEMENT WAS MADE WHILE HE WAS IN CUSTODY AND WITHOUT A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF HIS FIFTH AMENDMENT RIGHTS TO REMAIN SILENT AND TO HAVE COUNSEL PRESENT AFTER ADEQUATE ADVICE. THE MIRANDA VIOLATION DOES NOT FALL WITHIN THE "PUBLIC SAFETY" EXCEPTION, AS MEADOWS WAS HANDCUFFED, IN CUSTODY, IN A CLEARED, SECURED, NON-PUBLIC, AREA OF THE BASEMENT OF A BUILDING.

POINT II

THE TRIAL COURT'S RULINGS WERE NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL OR CREDIBLE EVIDENCE. THE CONCLUSIONS OF THE TRIAL JUDGE MISAPPLIED THE LAW AND IGNORED MANIFEST INCONSISTENCIES IN THE RELEVANT EVIDENCE, AS TO OFFEND THE INTERESTS OF JUSTICE.

POINT III

THE COURT ERRED IN SENTENCING BY ENGAGING IN A SIMPLE QUANTATIVE ANALYSIS OF MITIGATING VS. AGGRAVATING FACTORS AS VERSE [SIC] A QUALITATIVE ANALYSIS OF ALL FACTORS AS A WHOLE, AND VIOLATED THE TERMS OF PRINCIPLED SENTENCING.

In a pro se supplemental brief, defendant raises the following arguments:

POINT I

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY JURY BY IMPROPERLY SUBSTITUTING JUROR RATHER THAN DECLARING MISTRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not raised below).

POINT II

THE RECONSTITUTED JURY WAS TOLD TO BEGIN DELIBERATIONS ANEW, BUT THEY WERE GIVEN THE VERDICT SHEETS AND DELIBERATING NOTES FROM THE DELIBERATIONS OF THE OLD JURY. EVENTUALLY THE MISTAKE WAS CAUGHT. IT IS NOT KNOWN HOW MUCH THE NEW JUROR WAS EXPOSED TO OF THE OLD MATERIAL. THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO AN IMPARTIAL JURY BY ALLOWING THE JURY TO CONTINUE DELIBERATIONS ANEW A SECOND TIME RATHER THAN DECLARING A MISTRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. PARS. 1, 9, 10. (Partially raised below).

POINT III

THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY RELYING ON FACTS NOT PROVEN AT TRIAL AND ON VOUCHING FOR THE CREDIBILITY OF STATE WITNESS OFFICER CALDWELL. (Not raised below).

POINT IV

PROSECUTOR'S MISCONDUCT DURING SUMMATION DENIED DEFENDANT A FAIR TRIAL. (Partially raised below).

POINT V

THE TRIAL COURT'S FAILURE TO CAUTION THE JURY REGARDING THE RELIABILITY OF AN ALLEGED INCULPATORY STATEMENT MADE BY THE DEFENDANT TO DETECTIVE AT TIME OF ARREST DEPRIVED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not raised below).

We address the issues in defendant's briefs before discussion of the issues in the pro se supplemental brief.

Defendant argues in the first and second points of his brief that the trial court erred in permitting defendant's gun-location statement into evidence without him being properly informed of his Miranda rights. Defendant contends that the court improperly found the "public safety" exception to Miranda to apply.

In finding a public safety exception to apply, the trial court made a number of factual findings. The court noted that it "based these findings of fact on the testimony of the detective, whom I find by his tone and demeanor and how he said and what he said and how he said [it] to be credible." Referring to the incident, the trial court found that Ramos had been investigating an armed robbery on January 10, 2007. During the course of this investigation, he observed defendant and his co-defendant walking on the street. When he ordered them to stop, instead of doing so, they fled.

From there, Ramos chased defendant into the basement of 751 Martin Luther King Boulevard, where he "ordered defendant to put his hands in the air and to lay down on the floor." Once restrained, handcuffed, and frisked, no gun was discovered on a pat down. Ramos asked defendant where the gun was, due to "his concern for his safety, the safety of his fellow officers, and the safety of the public." Defendant told him it was in his front pocket.

The trial court went on to note the instant matter was factually similar to two cases from other jurisdictions in which the exception was found to apply. In both, the accused was in the publicly accessible area of an apartment building, disappeared momentarily from the officer's line of sight, and was then accosted again in the apartment building. The trial court then found that Ramos had a reasonable articulable suspicion that defendant was in possession of a weapon based on information received from victims of the robbery.

The trial court went on to analyze the four factors used in determining the existence of an exigency, as articulated in State v. Stephenson, 350 N.J. Super. 517, 525 (App. Div. 2006). First, the court found that the conduct of Ramos was based on the objective of protecting the public due to the threat posed by the unlocated firearm: "[i]f the police were unable to ascertain the location of the gun and left the area, any person could have potentially found that weapon, be a person living in the building or a vagrant wandering into the building and finding it." Second, the court found that the "gun posed a risk of immediate danger to the police responding to the scene, as well as the public at large." Because Ramos had no knowledge of the co-defendant's location at that point and, with respect to the public, "the other co-defendant could have acquired the weapon, and he would have posed a risk to the people in the building and the police[.]" Third, because the "entire aspect of the event in question relates to the location of the weapon," the trial court found this prong easily satisfied. Lastly, the court determined that the "question asked by Detective Ramos of where is the gun . . . relate[d] directly to the danger, and was reasonably necessary to secure public safety." The trial court denied defendant's motion to suppress.

At trial, Ramos testified that he did not lose sight of defendant during the case. Upon motion of defense counsel, the court reconsidered its prior ruling in light of this testimony. The court first found that even with this inconsistency, the testimony of Ramos remained credible, and the court declined to change its prior ruling as "it [would be just] as reasonable to infer . . . that the gun could have been discarded prior to Officer Ramos's encounter with the two defendants. In the vicinity of the car perhaps or abandoned and discarded somewhere else where somebody in the public could have access to it." Even if Ramos knew that the co-defendant had been apprehended, "it would in no way ameliorate the risk or the danger that others could have gotten access to that gun."

The "public safety" exception to the Miranda requirement allows an officer to question a suspect on the location of a weapon "in limited circumstances [when] based on an 'objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.'" State v. O'Neal, 190 N.J. 601, 618 (2007) (quoting State v. Quarles, 467 U.S. 649, 659 n.8, 104 S. Ct. 2626, 2633, 81 L. Ed. 2d 550, 559 (1984)). In this State, the following four factors must be satisfied: "(1) there was an objectively reasonable need to protect the police or the public; (2) from an immediate danger; (3) associated with a weapon; and that (4) the questions asked were related to that danger and reasonably necessary to secure public safety." Stephenson, supra, 350 N.J. Super. at 525.

The trial court's factual and legal findings that the Stephenson factors were all satisfied are supported by the record. Ramos was in pursuit of defendant after he was identified as one of two robbers. He saw both defendant and co-defendant flee and, at some point, the chase led to the back of the building and the basement itself. Although Ramos did not lose sight of defendant during this chase, he had no knowledge of defendant's whereabouts following the robbery until the chase began. After locating and arresting defendant, a pat down revealed no firearm. At this point, the detective still had no knowledge of the whereabouts of the co-defendant or the firearm. It could have been in the basement or the alley, accessible by either co-defendant or a member of the public. The question then asked by Ramos, "Where is the gun?" was directly related to defusing this potentially dangerous situation.

While defendant places much weight on the fact that he was handcuffed and frisked prior to being asked where the gun was located, this has no bearing on whether the doctrine applies. Resolution does not hinge upon the question of what a search of the area would reveal. Instead, the inquiry turns on the immediate threat to the public and the concomitant need to contain that threat. Defendant was in a place accessible to the public at the time of his arrest. Defendant and his pursuing police officers easily gained entrance to the basement of the apartment building in the heat of a flight and pursuit. Others could have gained access just as easily.

Ease of access distinguishes this case from State v. Elkwisni, 384 N.J. Super. 351 (App. Div.), certif. denied,

187 N.J. 492 (2006), aff'd, 190 N.J. 169 (2007), which defendant relies upon. There, co-defendants entered a convenience store, bound and beat the attendant, and demanded money. Id. at 359. Between them, defendants had one gun. Ibid. At some point in this ordeal, defendants locked the doors, denying both exit and entrance to all others. Ibid. A potential customer attempted to gain entry, and when he could not, became suspicious when he saw one of the defendants indicating that the store was closed. Ibid. Soon after, the police were alerted and a perimeter set. When the police attempted to break down the locked door, defendants came out with the unbound attendant. Ibid.

This court found the "public safety" exception inapplicable based on the complete lack of public access to the store and the containment of the co-defendants. Id. at 369. We found that "defendant and his cohort were apprehended by the police, without any opportunity to conceal the weapon used in the robbery, in any other location but inside the store." Ibid.

Likewise, "[t]he store was surrounded by law enforcement personnel, and the entire area was secured as a crime scene after defendant's arrest." Ibid. No member of the public had access to the store from the time the crime spree began until the point of defendant's arrest. Id. at 359.

Unlike Elkwisni, here the location of the weapon was not known and could have been in a number of areas accessible to the public. There was an unlocated co-defendant, and at the time of defendant's arrest, a police perimeter had not been set. The containment of the area where the weapon could be located in Elkwisni contrasts sharply with the open-ended, uncontained area, in the case at bar, where the weapon could have been discarded before the perpetrators were followed and prior to the chase.

The admission was properly found to fall within the "public safety" exception. The record fully supports the trial judge's findings and conclusions.

Defendant argues in Point III that the court improperly weighed the mitigating and aggravating factors when sentencing defendant. Defendant contends that the court simply established there were more aggravating factors than mitigating factors and, by taking "three aggravating vs. one mitigating" factor, the court failed to engage in a qualitative analysis in weighing the factors.

The trial court found aggravating factor three, the risk that defendant will commit another offense; aggravating factor six, the extent and seriousness of defendant's prior criminal record; and aggravating factor nine, the need to deter defendant and others. The court also found mitigating factor fourteen, that defendant was likely to lead a law-abiding life upon release.

In commenting on defendant's adult criminal record, the court noted ten arrests and seven indictable convictions: distribution of cocaine, distribution of heroin, robbery, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, possession of CDS with intent to distribute within 1000 feet of a school, and certain persons not to have weapons and one disorderly persons conviction. Furthermore, defendant had the benefit of probation three times as an adult, one probation violation, and three parole violations.

Our review satisfies us that the trial court properly applied the sentencing guidelines, that substantial evidence supported the findings made by the court in its application of those guidelines, and that the court thoroughly weighed the relevant facts under the guidelines. State v. Roth, 95 N.J. 334, 365-66 (1984). We deem defendant's sentence to be unexceptionable.

Defendant argues in Point I of his pro se supplemental brief that the trial court improperly replaced a juror "without even applying" Rule 1:8-2(d)(1).

That rule states in pertinent part:

If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.

[R. 1:8-2(d)(1).]

When there is a substitution, "the jury must be instructed that its deliberations must begin anew, a requirement which, moreover, implies that deliberations have not progressed so far that the substituted juror would be unable to function as an equal member of the panel." Pressler, Current N.J. Court Rules, comment 4.3 on R. 1:8-2 (2009). Additionally, "the excused juror must be found to be 'unable to continue' within the intendment of the rule." Ibid.

At the close of the first day of deliberations, juror number four reminded the court at 5:30 p.m. that she had plane tickets booked months prior for the following morning. After a sidebar, the parties and the court agreed to discharge the juror and substitute an alternate.

The following day, after an alternate juror was substituted for juror number four, the trial judge reinstructed the jury to begin deliberations anew. The court instructed the jury not to "speculate as to the reasons why juror number 4 was excused." The court also explained that

because of this change in your jury, you just set aside and disregard all of your past deliberations . . . [including] eliminat[ing] any impact that juror number 4 may have had on your deliberations, and consider the evidence and the context of full and complete deliberations with the new member of [the] jury.

With respect to instructing the jury to recommence anew, the court clearly satisfied this requirement of Rule 1:8-2(d)(1). Because defense counsel did not object to substitution, and because prior to the first day of deliberations, a witness testified, summations were given, a charge conference was conducted, a motion was argued and decided, and a full jury charge was provided, jury deliberations were not so far along as to render a substitute juror unable to function as a fully participating member of the reconstituted jury.

While the court did not address the appropriateness of substituting the juror, the parties did not object. Moreover, the discharged juror indicated that she sought to be excused due to prior travel plans, thus illustrating that the juror's removal was "unrelated to the juror's interaction with the other jury members." State v. Williams, 171 N.J. 151, 164 (2002). Rule 1:8-2(d)(1) was properly applied by the trial judge.

Defendant argues in Point II of his pro se supplemental brief that the court denied him a fair trial by allowing a juror, who had just replaced a member of the jury, to enter a jury room where there was an envelope that contained the notes and verdict sheets that the original jury had used the previous day during deliberations. Defendant contends that the court did not take the necessary steps to ensure that the jury remained fair and impartial. Defendant asserts that the court "should have interviewed the jurors to see whether or not the new juror had been exposed to anything from the original jury that could influence or pressure her to 'fall in line.'"

At the close of the first day of deliberations, the court instructed the jury to place notes and verdict sheets in an envelope that the court would return to the jury the following day. By the following day's deliberation, juror number four had been replaced with a substitute juror. Moments after the jury left the courtroom for deliberations, defense counsel brought the envelope to the court's attention.

The court immediately gave the following instructions to a sheriff's officer: "Tell the foreperson if there were any notes or anything that they had put in that envelope yesterday, including the verdict sheets to make sure they're in that envelope when you bring that envelope back to me." The court then provided the jury with new verdict sheets and notepads.

There is no evidence to suggest that the substitute juror saw or was influenced by the deliberation notes of the preceding day's deliberations. The immediate action taken by the trial judge precluded any taint from prior deliberations before the jury began its deliberations anew.

Defendant claims in Points III and IV of his pro se supplemental brief that various statements within the prosecutor's summation denied defendant a fair trial. We disagree.

Prosecutors occupy a unique position in the criminal justice system; their role is not to obtain convictions, but to see that justice is done. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); see State v. Spano, 64 N.J. 566, 568 (1974) (noting that prosecutors' actions and comments carry the full weight and authority of the State). They must refrain from improper methods calculated to produce wrongful convictions. State v. Frost, 158 N.J. 76, 83 (1999). Accordingly, in summation, prosecutors are "generally limited" to commenting on the evidence and the inferences to be drawn from the evidence; additionally, their legal and factual assertions must be accurate. State v. Smith, 167 N.J. 158, 182 (2001); Frost, supra, 158 N.J. at 85; Zola, supra, 112 N.J. at 426.

However, prosecutors may still make a "vigorous and forceful presentation of the State's case," Zola, supra, 112 N.J. at 426, and are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. Frost, supra, 158 N.J. at 82. A prosecutor is also permitted to respond to arguments raised by the defense so long as the response does not constitute a foray beyond the evidence adduced at trial. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied

sub nom. State v. Pantoja, 169 N.J. 610 (2001).

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial; failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. Frost, supra, 158 N.J. at 83-84. The failure to object also deprives the court of an opportunity to take curative action. Id. at 84. Where an objection to summation is raised for the first time on appeal, the reviewing court applies the plain error standard. R. 2:10-2; State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001).

Our courts have consistently recognized that it is wholly inappropriate for a prosecutor to bolster a police witness's credibility by mentioning that the officer would be risking his or her career by lying on the stand. Frost, supra, 158 N.J. at 85-86. The problem with this kind of exhortation is that it unfairly invites the jury to speculate whether the effect of an acquittal would be to terminate the officer's career. Id. at 86. Such statements "are improper because they divert the jurors' attention from the facts of the case before them." Ibid.

Defendant argues that the prosecutor improperly bolstered the credibility of Officer Caldwell in summation. Defendant asserts that Caldwell was the witness other than Ramos to defendant's statement as to where the gun was located and to the recovery of the gun. Defendant contends that the facts the prosecutor references to support Caldwell's credibility are not in the trial record. In closing statements, the prosecutor stated:

Now, we give Mr. Burnell credit, yet when the other arresting officer who has likely arrested hundreds of people since that day when he comes in and he can't -- Detective Caldwell, and he can't make an identification and he's up front with you, he's read the reports, he know[s] who he's arrested. Defense attorney even asked[,] you arrested my client, [defendant]. He just read his name, he just read that he was the arresting officer of [defendant], the bigger of the two gentlemen, the one who didn't have the dreadlocks. He could have just come in, looked, saw [defendant], saw that he was the bigger guy, pointed at him and said that's the guy I arrested.

During trial, Caldwell testified that he remembered the pursuit and arrest of the individuals in this case. He recounted meeting Ramos at the Martin Luther King Boulevard apartment building and, after going down the alley next to the building, that together they arrested defendant in the basement of the building. He also testified that Ramos asked defendant where the gun was, and when defendant said that it was in his pocket, Ramos retrieved a gun from defendant's pocket.

Given Caldwell's testimony at trial, the prosecutor did not refer to facts that were not in the record. Rather, the prosecutor pointed out, that though Caldwell testified to the events surrounding defendant's arrest, the fact that he did not identify defendant in court spoke to his honesty rather than his uncertainty that defendant committed the crime. The prosecutor's comments were grounded in the record and incapable of producing an unjust result.

Defendant next argues that the prosecutor misstated the law during summation by stating:

Now to find the defendants not guilty is to find not that there are inconsistencies, not that the stories don't match up exactly, because this is eight months ago, minute details, details of who gets out of the car first, [who is] standing where, what address things are. Those are things that different people remember differently, and after time no one could expect a number of officers have the same exact recount of the quick moving chase. If they did, if each officer on an instantaneous chase remembered every detail of that chase exactly word for word the same, then I'd tell you they probably rehearsed it, they probably read from a script. No, different people remember things differently. Little inconsistencies [don't] mean anyone is lying, tell you what they remember. To find the defendants not guilty is not to define inconsistencies, it's defined that each witness who came into this courtroom, the officer and Mr. Burnell lied to you. Every single thing that they said was a lie. Not a mistake, not an accident, not inconsistent, a complete lie meant to deceive you.

Defense counsel then objected and the following colloquy ensued:

DEFENSE COUNSEL:

[Prosecutor] -- the jury they'll find the defendants not guilty. The jury must find everything said by every single witness is a lie, that's a misstatement. All they have to do is -- not simply beyond a reasonable doubt. Not that everything said and everybody who testified is lying, that not true. That's not the law.

THE COURT:

What is your response Mr. [Prosecutor]?

PROSECUTOR:

That's the -- the only way that conspiracy

--

. . .

I wasn't making a statement on the law, and I apologize if it was construed as a statement. My -- my statement was that the defense theory is not that it's a mistake, but that it's a corroborative and together conspiracy to lie -- that they shouldn't -- that that's how they should do it. I have

-- of the law.

DEFENSE COUNSEL:

I haven't said -- for example, I never said that Paul Burnell came in here and lied. I did not. He's the witness, he's saying that every single witness that came we're saying that in order for this jury to find not guilty, they have to believe that everything that was said by every single witness was a lie. That's not true. He could believe -- they could believe that some people are and some people aren't --

THE COURT:

Well --

DEFENSE COUNSEL:

-- but there is no proof beyond a reasonable doubt.

THE COURT:

I think . . . my instructions as to the law will make it very clear as to what the jury --

DEFENSE COUNSEL:

Well, what about what was just heard?

THE COURT:

I don't find that what [prosecutor] said was something that warrants a comment by the Court actually . . . as I was listening to it it didn't strike me that he was doing

. . . what [prosecutor] as doing frankly was more consistent with [prosecutor's]. The defense objection is noted.

A review of the prosecutor's closing argument, in the context of defense counsel's argument, State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005), reveals that the statements were a response to defense counsel's contention in closing arguments pointing out inconsistencies in the testimony to show the unreliability of the police witnesses. The prosecutor was alluding to the testimony of the officers, while possibly inconsistent, could, nevertheless, be used together or separately to return a guilty verdict. Put another way, the witnesses' testimony did not stand or fall together as suggested by the defense. The State also mentioned that the court would instruct the jury on the reasonable doubt standard which would be controlling. Any possible misconduct of the State's prior statement regarding inconsistencies in trial testimony would be corrected by the trial court's charge. We are satisfied that the State's comments did not have the capacity to change the outcome of the trial.

Defendant also argues that a portion of the prosecutor's summation inappropriately commented on Ramos's lack of motive to lie. Again, however, the prosecutor's comments were responsive to arguments to the repeated comments in the defense's summation challenging the officer's credibility by suggesting there was a cover up to shoddy police work. We discern no impropriety in the State's summation remarks.

Defendant argues in Point V of his pro se supplemental brief that the court should have given a Hampton charge in relation to defendant's statement that the gun was in his pocket. Defendant claims that no other evidence linked him to the weapon and that failing to provide a Hampton charge was clearly capable of changing the jury verdict.

A Hampton charge is generally required when a defendant's oral or written statement is introduced at trial. State v. Jordan, 147 N.J. 409, 425 (1997). Failure to provide the charge, however, is "reversible error only when, in the context of the entire case, the omission is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-1).

Here, there was sufficient evidence to establish defendant's guilt outside of defendant's statement. The police recovered the weapon and bullets from defendant's pocket. Defendant possessed the weapon itself. While the robbery charges were contingent upon which version of the events the jury believed, it was indisputable that a weapon was found in defendant's right coat pocket. The failure to give a charge regarding defendant's statement was not clearly capable of producing an unjust result because there was enough evidence before the jury to convict defendant without the statement. See id. at 425-26.

 
The judgment of conviction and sentence are affirmed.

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

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

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A-3860-07T4

November 9, 2009