STATE OF NEW JERSEY v. KEONA LANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4926-06T44926-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEONA LANE aka SHAY LANE,

Defendant-Appellant.

______________________________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Skillman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment

No. 05-03-0308.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); third-degree riot, in violation of N.J.S.A. 2C:33-1(a)(3); and various other lesser offenses. The trial court sentenced defendant to a six-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent four-year term for riot. The court merged defendant's other convictions into her conviction for aggravated assault.

The victim of the offenses was the fiancée of defendant's former boyfriend. The two women encountered each other on the streets of Elizabeth around 3 a.m. on November 21, 2004. Both women were in cars accompanied by other women.

After the victim drove by defendant's parked car, defendant began to follow her. About three minutes later, the victim parked her car at the side of the street, and defendant stopped her car next to the victim's car. At this point, the victim heard defendant say, "yeah that's her." Defendant and her companions got out of their car, and defendant and the victim exchanged words. Defendant told the victim that most, if not all, of the women in her car were carrying either a knife or razor. However, after a bystander called the police, defendant and her companions returned to their car and drove away.

The victim also got back in her car and began driving down the street, but she pulled over a few minutes later to pick up another passenger. Defendant again stopped her car near the victim's car, and she and her companions got out of the car. The victim and some of her companions also got out of their car, and the two groups of women began to fight. During the fight, the victim felt someone grab her hair and cut her on the back. The victim turned to see defendant standing alone, looking her in the face. When the victim realized she was bleeding, she got back into the car. While she was sitting in the car, one of defendant's companions, co-defendant Sameerah DeWalt, slashed the victim's front tire and then slashed her face with a razor.

Defendant drove off after the incident accompanied by her companions. According to the testimony of co-defendant DeWalt, defendant told each of the women to make a false statement to the police that the victim had been the aggressor in the incident. At about 3:41 a.m. on November 21, defendant arrived at police headquarters in Elizabeth and filed a complaint.

At defendant's trial, the State presented testimony by the victim, one of the victim's companions, and co-defendant DeWalt, who pled guilty pursuant to a plea bargain under which she agreed to testify at defendant's trial, all of whom testified to defendant's role in the slashing of the victim. In addition, a witness called by a co-defendant also identified defendant as one of the participants, although she testified to a different version of the incident.

On appeal, defendant presents the following arguments:

POINT I:

DURING CLOSING ARGUMENT, THE PROSECUTOR COMMITTED SEVERAL INSTANCES OF PROSECUTORIAL MISCONDUCT, THEREBY DENYING THE DEFENDANT THE ABILITY TO RECEIVE A FAIR TRIAL. (Partially Argued Below).

A. The prosecutor intentionally

referred to facts not in

evidence during his closing argument, and the court's curative instruction could not remedy the damage. (Argued Below).

B. The prosecutor incorrectly informed the jury of their critical role during his closing argument thereby lowering his burden of proof required for conviction and violating the Defendant's right to due process and a fair trial under the Sixth and Fourteenth Amendments of the United States Constitutions and Article I, Paragraphs 1, 9 and 10 of the New Jersey Constitution. (Not Argued Below).

C. During closing argument, the prosecutor committed plain error by intentionally misleading the jury regarding the availability of alternate defenses for the Defendant. (Not Argued Below).

D. The prosecutor committed prosecutorial misconduct by boldly expressing his personal beliefs of the invalidity of the Defendant's alibi defense, thereby requiring a reversal of the conviction. (Not Argued Below).

POINT II:

THE SENTENCE RECEIVED BY THE DEFENDANT WAS ERRONEOUS AND EXCESSIVE.

A. The trial court erroneously ignored mitigating factor eleven (excessive hardship to Defendant's children) during sentencing.

B. The trial court improperly balanced the aggravating and mitigating factors.

We conclude that the prosecutor's comments in summation upon which the first point of defendant's brief is based did not deprive defendant of a fair trial. Therefore, we affirm defendant's conviction. However, we also conclude that the trial court erred in failing to identify the hardship to defendant's children as a result of her incarceration as an applicable mitigating sentencing factor. Therefore, we remand the case to the trial court for reconsideration of defendant's sentence in light of this mitigating factor.

I.

Defendant only objected to one of the prosecutor's comments in summation that she now claims requires a reversal of her conviction. That comment related to the State's evidence that defendant told the other occupants of her car to lie to the police about the assault and then went to the police station herself. The prosecutor argued to the jury:

Then what does [defendant] do?

Gets in the car with everyone, hey, let's go -- all go to the police station and tell them she attacks her. Let's shift the burden. She did it, not us.

And you know what they do?

Not me. You do it.

So she goes to the police station. She's at the police station. God forbid, she could be anywhere else, but then, again, the circle is not complete and wants you to believe if I am there, then maybe I didn't do it, what these people said I.

Defendant argues that this part of the prosecutor's summation "referred to details of the police report made by [defendant] that were not in evidence[,]" based on the prosecutor's in limine motion to exclude that report as hearsay. However, the prosecutor did not directly assert that defendant told the police the victim was the one responsible for the melee, and the prosecutor's statement that defendant "wants you to believe if I am there [i.e., at the police station], then maybe I didn't do it . . . [h]olds no water" could have been understood as an attack upon defendant's alibi defense, emphasized in defense counsel's summation, that defendant was at the police station at the time of the assault. In any event, the trial court gave the jury an appropriate curative instruction regarding the prosecutor's comment:

In the prosecutor's summation yesterday he had mentioned that the defendant, Keona Lane, went to Police Headquarters, and he specified for specific reason[s]. But there was no testimony presented as to why Keona Lane actually went to Police Headquarters at that time in the morning.

Therefore, anything that the prosecutor said was not in evidence. You shall strike from your consideration anything that he may have suggested, and not to consider that. You are not to consider that in any manner in your discussions or your deliberations.

Therefore, even if the prosecutor's comment in summation may have inferred that defendant gave a statement at the police station that blamed defendant for the melee, as DeWalt testified defendant asked her companions to do as they were driving from the scene, the comment did not have a sufficient capacity to prejudice the defense to require a reversal of defendant's conviction, particularly in view of the overwhelming evidence of defendant's guilt and the court's curative instruction.

The second of the prosecutor's comments in summation that defendant claims requires a reversal related to the State's burden to prove her guilty beyond a reasonable doubt:

You, as the fact-finders, you are not here in a search for reasonable doubt. You are here to find the truth. What happened?

Defendant did not object to this comment at trial. Furthermore, the prosecutor correctly described the State's burden of proof immediately before the isolated comment that defendant now claims requires a reversal of her conviction:

The burden is reasonable doubt. Just to start you off, it's a reasonable doubt. It's not all doubt, it's not any doubt, it's reasonable doubt. And I, as a representative of the State, accept that burden. If I don't prove each and every element, then find them not guilty.

Most significantly, the trial court correctly instructed the jury regarding the State's burden to prove defendant's guilt beyond a reasonable doubt. Therefore, the prosecutor's isolated comment regarding the State's burden of proof objected to for the first time on appeal had no substantial capacity to prejudice the defense.

Defendant also complains about the following comment by the prosecutor:

Now, some things that [defense counsel] said, I feel I have to point out to you, ladies and gentlemen.

As I said at the beginning of the trial, she stood before you and said Keona's not there.

Well, we all know they're listening to everyone's testimony. Keona's there, no getting around Keona is there. Very interesting that at the end of Keona not being there, it's mentioned that, well, if you find that Keona is there, then you might want to find her for a lesser included.

Well, what is it?

You don't have your cake and eat it, too.

If you want your alibi that she couldn't be there because she's at the police station, then, you know, don't get to say find her guilty of something.

Defendant argues that this comment constituted an improper and unfair criticism of defense counsel's right to present alternative arguments to the jury. Again, defense counsel did not object to this part of the prosecutor's summation at trial. Although we consider this comment to have been improper, we are unable to conclude, in the absence of any objection and in light of the overwhelming evidence of defendant's guilt, that it had a sufficient capacity to prejudice the defense to require a reversal of defendant's conviction.

Defendant also argues that a reversal of her conviction is required because of the following comment in the prosecutor's summation:

As a wiser prosecutor than I said, one point, you -- only thing worse than no alibi defense, is a bad alibi defense. And, ladies and gentlemen, that's what you have here.

Defendant claims that this comment constituted an improper expression of the prosecutor's "personal belief" about the incredibility of defendant's alibi defense. However, we believe this comment could and should be viewed simply as a comment upon the evidence at trial and a response to the part of defense counsel's summation advancing defendant's alibi defense.

II.

Defendant argues that the trial court erred in failing to identify the hardship to defendant's children as a mitigating sentencing factor and, as a result, imposed an excessive sentence.

In State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993), we held that the mitigating sentencing factor of "excessive hardship to [defendant's] dependents," N.J.S.A. 2C:44-1(b)(11), applies if a defendant is the custodial parent of minor children. We reaffirmed this holding in State v. Christensen, 270 N.J. Super. 650, 657 (App. Div. 1994).

Defense counsel argued at sentencing that excessive hardship to defendant's children, who were then ages three and seven, from her incarceration was an applicable mitigating factor. However, the court failed to identify such hardship in imposing sentence upon defendant. Although the court stated in denying defendant's motion for reconsideration that a defendant's role as a custodial parent is "a factor which I do consider," it did not specifically identify the hardship to defendant's children as an applicable statutory mitigating factor.

In State v. Dalziel, 182 N.J. 494, 505 (2005), the Court held that any applicable mitigating factor "must be part of the deliberative process" in imposing sentence, and Mirakaj holds that N.J.S.A. 2C:44-1(b)(11) is an applicable mitigating factor when a defendant is the custodial parent of minor children. Therefore, the trial court erred in failing to give appropriate consideration to this mitigating factor and must resentence defendant in light of this factor. Although this mitigating factor could not support the sentencing of defendant within the range for a third-degree offense under N.J.S.A. 2C:44-1(f)(2), it could support imposition of a five rather than a six-year term. See Mirakaj, supra, 268 N.J. Super. at 50-52; see also State v. Kelly, 97 N.J. 178, 219-20 (1984).

At defendant's resentencing, the court also should reconsider the identification of the risk of defendant committing another offense, N.J.S.A. 2C:44-1(a)(3), as an applicable aggravating sentencing factor. Although the applicability of this factor may be self-evident if a defendant has a lengthy criminal record, the court viewed defendant as a first offender. Therefore, the applicability of this aggravating factor is not self-evident in the present case.

 
Accordingly, we affirm defendant's conviction, but vacate her sentence and remand for resentencing.

(continued)

(continued)

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A-4926-06T4

March 19, 2010