STATE OF NEW JERSEY v. KENNETH L. COPSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3341-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH L. COPSON,

Defendant-Appellant.

____________________________________

August 17, 2011

Submitted February 16, 2011 - Decided

Before Judges Gilroy, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-08-0573.

Loughry and Lindsay, LLC, attorneys for appellant (Justin T. Loughry, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 12, 2008, a Cape May County grand jury indicted defendant, Kenneth L. Copson, on charges of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); second degree aggravated assault while eluding, N.J.S.A. 2C:29-2b and N.J.S.A. 2C:12-1b(6) (count two); and second degree eluding, N.J.S.A. 2C:29-2b (count three). On December 9, 2009, a jury convicted defendant of the lesser included offense of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(3), on count one, and of counts two and three. On February 4, 2010, after denying defendant's motion for a new trial, the court merged the convictions on counts one and three with count two, and sentenced defendant on count two to eight years of imprisonment with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision on release. We affirm.

I.

We discern the following facts from the trial record. Twice before midnight on May 14, 2008, Middle Township Police Officer Stephen Novsak was dispatched to a residence in the Edgewood section of Middle Township, Cape May County, to investigate a possible fight. Each time, upon his arrival, residents told him that the matter had been resolved and there was no need for his services. At approximately 12:30 a.m. on May 15, 2008, Novsak, Patrolman Matthew Martino, and Corporal Richard Sittineri were dispatched to Sixth Avenue, in the same section of the Township, to investigate another report of a fight. Each officer was in uniform and drove a separately marked police vehicle.

Upon arrival, the officers encountered Nick Hazel and defendant. Hazel said he and his brother had fought earlier, but that there would be no further problem. The officers took no action, but Novsak and Martino decided to stay at Sixth Avenue and Main Street to deter additional problems. They subsequently investigated a minor incident in a wooded area off Sixth Street.1

Later that morning, about 1:30 a.m., Novsak and Martino heard an all-terrain vehicle (quad) operating in the distance. The sound of the quad faded, then the officers heard it again and determined that it was on Sixth Street. Martino and Sittineri walked toward the quad, which had stopped, and Sittineri thought he saw the light of a cell phone. As they approached the quad, the driver, later identified as defendant, drove away.

The quad returned and stopped somewhere on North Sixth. Sittineri drove toward the quad with his lights turned off, trying to close the gap between his vehicle and the quad. Meanwhile, Novsak and Martino proceeded to the intersection of Sixth and Main. As Sittineri neared the quad, he turned on his red, white and blue strobe lights, which defendant ignored as he drove into an open field.2 Sittineri gave chase. Defendant did not turn on the quad's lights as he sped through the field, turned onto Seventh Street, and disregarded a stop sign. Driving erratically, he continued onto Main at a high rate of speed on the wrong side of the street.

As defendant drove toward Novsak and Martino, they flashed their flashlights and yelled at him to stop; instead, he drove toward Novsak and accelerated. Novsak and Martino jumped to avoid the quad, which swerved and struck Novsak, shattering his leg. Defendant then drove into the woods, but surrendered when Martino drew his weapon. When Martino arrested him, defendant asked Martino why the officers did not move. Sittineri issued defendant traffic summonses for reckless driving, failure to comply with an officer's directions, failure to give a signal when turning, failure to stop at a stop sign, failure to keep right, and failure to yield to pedestrians.3

II.

On appeal, defendant raises the following issues:

I. THE PROSECUTION'S SUMMATION IMPROPERLY URGED THE JURY TO CONVICT FOR IRRELEVANT SUPPOSED BAD ACTS AND BASED ON AN ERRONEOUS STANDARD OF NEGLIGENCE OR "UNREASONABLENESS". (NOT RAISED BELOW); THE PROSECUTION COMPOUNDED [ITS] MISLEADING OF THE JURY ON APPLICABLE LAW BY URGING THE DEFENDANT'S RESPONSIBILITY FOR VIOLATING A MOTOR VEHICLE STATUTE, 39:4-66.1, FOR WHICH THE RECORD PROVIDED NO EVIDENTIARY SUPPORT; THUS THE PROSECUTION'S SUMMATION MISSTATED THE LAW AND SATISFIES THE PLAIN ERROR STANDARD. (NOT RAISED BELOW).

II. THE PROSECUTOR'S SUMMATION IMPERMISSIBLY COMMUNICATED THE PROSECUTOR'S BELIEF IN DEFENDANT'S GUILT, DENIGRATED THE DEFENDANT AND THE DEFENSE, IMPERMISSIBLY INJECTED THE PROSECUTOR'S PERSONAL EXPERIENCE TO SUPPORT THE PROOFS ON MENS REA, URGED THE JURY TO STAND UP FOR PUBLIC ORDER AND TO "HOLD THE DEFENDANT ACCOUNTABLE" AND IMPERMISSIBLY APPEALED TO THE JURY'S EMOTIONS AND PASSION, PREJUDICE OR SYMPATHY IN FAVOR OF THE POLICE (NOT RAISED BELOW).

III. THE COURT FAILED TO INSTRUCT THE JURY PROPERLY ON ITS CONSIDERATION OF CONDUCT THAT MIGHT CONSTITUTE VARIOUS MOVING VIOLATIONS, AND INCLUDED AN IMPORTANT SUPPOSED VIOLATION THAT HAD NO BASIS IN THE EVIDENCE, FAILURE TO YIELD TO PEDESTRIANS (NOT RAISED BELOW).

IV. THE FAILURE OF THE DEFENSE COUNSEL TO OBJECT TO ERRORS IN THE CHARGE AND TO PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

V. THE SENTENCE WAS EXCESSIVE.

Defendant contends in his first two points that prosecutorial misconduct during the State's summation requires reversal of his conviction. Because defendant did not object to the summation, we consider the arguments under the plain error standard of review. Under that standard, the error must be "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971).

To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the "misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987), certif. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). The absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial. See Id. at 323.

In his first point, defendant contends that the prosecutor urged the jury to convict him for mere negligence or unreasonableness, based on irrelevant bad acts, and argued without evidential support that defendant committed the motor vehicle offense of failure to yield to a pedestrian. We disagree.

Defendant emphasized in his summation the failure of the State to gather and produce forensic and scientific evidence. Responding to this contention, the prosecutor argued that the incident was not an accident involving negligent or careless conduct, and was not about scientific evidence, but was about defendant's state of mind:

The State's position here is that this was outrageous conduct. Aggravated recklessness: Certainly [defense counsel] was absolutely correct, I am going to hit you over the head with aggravated recklessness. That's a mental state that's necessary for the State to establish the crime of aggravated assault with serious bodily injury.

The prosecutor also told the jury that the judge would instruct them on purposeful, knowing, and reckless conduct; and that reckless conduct involved "[c]onscious disregard[] of a substantial and unjustifiable risk that the result will occur from the conduct[,]" and "a gross deviation from the standard of care that a reasonable person would observe in the actor's situation."

When discussing defendant's state of mind, the prosecutor "compare[d] the defendant's conduct with that of a reasonable person." To emphasize the deviation of defendant's conduct from that of a reasonable person, the prosecutor argued that "driving an ATV in a residential neighborhood," at 1:00 in the morning, "without a helmet," "not stopping for the police," and "not yielding for pedestrians" was unreasonable. He also argued that "blowing through a stop sign, headlights off, accelerating towards pedestrians, [is] outrageous operation that a reasonable person does not engage in."

The prosecutor's comments were appropriate for the jury to consider when determining defendant's state of mind. Defendant does not dispute that the jury was required to evaluate, among other things, whether he acted recklessly. Recklessness is an element of both second degree aggravated assault, which was charged in count one of the indictment, and the lesser included offense of "recklessly caus[ing] bodily injury to another with a deadly weapon[.]" N.J.S.A. 2C:12-1b(3). The term "recklessly" is defined as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct in the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation..

[N.J.S.A. 2C:2-2b(3) (emphasis added).]

Considered in the context of the entire closing, none of the prosecutor's remarks suggested that defendant could be convicted for negligence or unreasonableness.

We also reject defendant's contention that the prosecutor's references to defendant driving the quad loudly, after 1:00 a.m., in a residential neighborhood, and without a helmet, were irrelevant, focused the jury on inconsiderate behavior, and invited the jury to convict defendant for being an inconsiderate person. These acts, when considered in the full context of the events, were relevant to the State's theory that defendant's conduct was reckless.

Moreover, defendant did not object to the comments, and considering the proofs of defendant's speeding, disregarding a stop sign, eluding a police vehicle, driving his quad directly at an officer, and asking why the officers did not move, the evidence of his reckless state of mind was overwhelming. Accordingly, we find no error in the prosecutor's comments during summation, much less plain error. R. 2:10-2.

Defendant also contends the prosecutor's argument that defendant failed to yield to a pedestrian was error. In arguing the unreasonableness of defendant's conduct, the prosecutor referred to Novsak and Martino as pedestrians:

Not yielding for pedestrians, I submit to you that's extremely unreasonable. Accelerating at pedestrians and turning directly into a pedestrian. In this case, of course, the pedestrian is, in fact, a police officer, but really let's just consider him a pedestrian, because that's what he was. He was a person on the street on foot, a pedestrian. Boom, he was knocked out of commission.

The argument was based on facts adduced during testimony, and we find no error in the prosecutor's comment.

In his second point on appeal, defendant challenges the prosecutor's remarks about the defense theory of the case, the prosecutor's reference to his personal experience, and the prosecutor's urging the jury to hold defendant accountable for his actions. To refute defendant's contention that the incident was an unintended accident, the prosecutor "made fun of" the implication that defendant did not see Novsak and Martino:

The defense of I didn't see anything, I didn't know anything, well, you know what, I made fun of it in my opening and I'm making fun of it now, because it's so pathetic. It's not based in reality. Because there's no question that those officers, those yellow stripes were lit up, no question Mr. Copson saw those police officers. Accelerated towards them, turned and struck one of them. And then you heard that he, after striking him, he went - - lost control and went into the woods.

Later in his summation, when commenting on the eluding charges, the prosecutor referred to his own driving experience to challenge defendant's purported belief that he did not know he was being pulled over:

I've been pulled over before. And the first thing that I always, when I hear see flashing lights behind me, is I hope it's someone else. I'm looking around for other cars and hoping, oh, geez, I hope someone else is getting pulled over. But you know what, when you're the only ATV and there's one SUV behind you with flashing lights, you know what, you're the one. You're the guy they're trying to pull over.

Finally, in concluding his argument, the prosecutor asked the jury to hold defendant accountable for his conduct. The prosecutor stated: "There's an issue of accountability, accountability for one's conduct." He then added: "Ladies and gentlemen, I submit to you hold Mr. Copson responsible for his outrageous conduct. Find him guilty of all three counts. The State has satisfied the elements of each and every crime in the indictment."

A prosecutor may not suggest that testimony is fabricated, characterize the defense as outrageous or absolutely preposterous, or call the defendant derogatory names. See State v. Scherzer, 301 N.J. Super. 363, 446 (App. Div.), certif. denied, 151 N.J. 466 (1997). Also, a prosecutor may not repeatedly urge a jury to hold the defendant "accountable." State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003).

Although the prosecutor's characterization of the defense theory as pathetic and not based in reality was improper, there was more than substantial evidence that defendant saw the officers standing in the street, waving flashlights, and yelling, before his quad struck Novsak. After defendant was arrested, he asked Martino why the officers did not move. The defense suggestion that defendant did not see the officers was clearly contrary to the factual evidence in the case, while the evidence that defendant eluded a police vehicle, saw Novsak, and drove into him, was substantial. We do not find that the statements were so egregious that they denied defendant a fair trial. Frost, supra, 158 N.J. at 83.

We reach the same result with respect to the prosecutor's reference to his own experience of seeing a police car with a siren. Although the prosecutor should not have personalized the issue, he was merely relating an experience common to most, if not all drivers. Personalizing the experience did not deprive defendant of a fair trial.

Finally, we do not find reversible error in the prosecutor's argument that the jury should hold defendant accountable for his conduct. Unlike Neal, where the prosecutor made accountability a theme of his summation, the limited reference to accountability in this case, considered in the context of all of the evidence, was not so egregious that it deprived defendant of a fair trial.

III.

Next, defendant contends the court improperly instructed the jury. We recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)).

In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960). The defendant is not entitled to have a jury charged in his or her own words. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002).

Defendant first contends that the trial court committed error in its instruction to the jury on the issue of motor vehicle offenses. The eluding statute provides in part that "there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes." N.J.S.A. 2C:29-2b. Defendant concedes the trial court properly defined the elements of each traffic offense, and properly instructed the jury to consider only those violations that occurred after the police issued a command to stop. For the first time on appeal, defendant argues that the judge's failure to instruct the jury that it had to specifically and unanimously determine when the order to stop was issued resulted in a possible ambiguity in the verdict. Specifically, defendant submits that some of the jurors could have determined that he did not see Sittineri's police vehicle pursuing him, with its lights activated, and therefore he perceived the command to stop only when Novsak and Martino waved their flashlights and yelled at him. From that premise, defendant argues some of the jurors could have improperly considered traffic violations that occurred before he perceived the command to stop.

The trial court instructed the jury that it could "consider the evidence that [defendant] committed one or more motor vehicle offenses after the signal to stop, should you find one was given, in deciding whether the defendant created a risk of death or injury" (emphasis added). Defendant neither requested that the judge refine the charge nor objected to the charge as given. It was undisputed that defendant continued to drive away from Sittineri's police vehicle after Sittineri had activated the strobe lights. It was also undisputed that defendant was driving at an excessive rate of speed, and without lights, when his quad struck Novsak. Defendant's manner of operation of the quad at the time of impact provided sufficient evidence to sustain the jury verdict. In view of that evidence, and in view of defendant's failure to request the instruction he now proposes, we find no plain error in the judge's charge.

Defendant also contends the judge's charge on failure to yield to a pedestrian should not have been given because it was not supported by the evidence. The State concedes that point, but claims the erroneous instruction was harmless error. We agree.

The court instructed the jury on each element of each traffic offense, and also instructed the jury that it "may consider the evidence that has been presented in this case and whether or not that evidence establishes in your mind that the [d]efendant committed one or more motor vehicle offenses in deciding whether or not the [d]efendant operated a motor vehicle recklessly" (emphasis added). The jury is presumed to have followed those instructions. See State v. Miller, 205 N.J. 109, 126 (2009). Because we determine that the evidence supporting defendant's conviction was overwhelming, we conclude the charge was not clearly capable of producing an unjust result. R. 2:10-2.

Finally, defendant argues the court "never seems to have told the jury that it must evaluate whether those [traffic] violations occurred under the 'beyond a reasonable doubt standard.'" The argument is unpersuasive. During the initial portion of the charge, the judge accurately instructed the jury on reasonable doubt. Each time the judge defined an offense and instructed the jury on the elements of the offense, he repeated that the State was required to prove each element beyond a reasonable doubt. We find no error in the judge's instructions to the jury on reasonable doubt.

IV.

Defendant contends his trial counsel was ineffective for not objecting to the comments made by the prosecutor in summation, and to the jury charge. "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." State v. Preciose, 129 N.J. 451, 460 (1992). We decline to address defendant's arguments without an adequate record. Defendant must raise any such ineffective-assistance-of-counsel claims through a petition for post-conviction relief under Rule 3:22-1.

V.

Lastly, defendant argues his sentence was excessive. A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive nor unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). In determining the appropriate sentence to be imposed, the sentencing court must consider and balance statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1(a) and (b), and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987).

In turn, the court must determine

first, whether the correct sentencing guidelines . . . [or] presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of the guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Tindell, 417 N.J. Super. 530, 567 (App. Div. 2011) (quoting Roth, supra, 95 N.J. at 365-66).]

When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess them. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted); O'Donnell, supra, 117 N.J. at 216.

Defendant was sentenced to eight years for his conviction of causing bodily injury to a law enforcement officer, N.J.S.A. 2C:12-1b(6), with an 85% period of parole ineligibility under NERA. Defendant argues that the judge impermissibly "weighed heavily the severity of the injury sustained" and imposed sentence without expressing any rationale as to why a lesser term was inappropriate. In sentencing defendant, the judge found three aggravating factors: the risk that defendant will commit another offense, the extent of his prior criminal record and the seriousness of the offenses of which he has been convicted, and the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found one mitigating factor, defendant's willingness to cooperate with law enforcement authorities, N.J.S.A. 2C:44-1(b)(12).

Defendant does not contend that the judge's findings were unsupported by the record. The judge provided a detailed factual basis not only for his finding of each factor, but also for the weight he assigned to each factor. The judge also explained in detail his reasons for the length of the sentence. We find no abuse of the judge's sentencing discretion.

A

1 The witnesses referred to both Sixth Avenue and Sixth Street. The name apparently changes as Sixth crosses Main Street.

2 On cross-examination, Sittineri conceded writing in his post-incident report that he activated his strobe lights after defendant entered the field.

3 The trial judge, sitting as a municipal court judge pursuant to Rule 3:15-3(a)(2), convicted defendant of several traffic violations. The court merged those convictions with the reckless driving conviction; and on sentencing merged the reckless driving conviction with count two.