STATE OF NEW JERSEY v. CLARENCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0371-10T3

A-0616-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLARENCE T. LEWIS, a/k/a

CLARENCE LEWIS,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN GILMORE, a/k/a

STEVEN A. GILMORE, JR.,

Defendant-Appellant.

December 24, 2012

Submitted November 27, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-00424.

Joseph A. Krakora, Public Defender, attorney for appellants (Gilbert G. Miller, Designated Counsel, on the brief in

A-0371-10 and Gregory P. Jordan, Designated Counsel, on the brief in A-0616-10).

Theodore J. Romankow, Union County Prosecutor, attorney for respondents (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief in A-0371-10 and Jeremiah E. Lenihan, of counsel and on the brief in A-0616-10).

PER CURIAM

These back-to-back appeals, which we consolidate for purposes of this opinion, arise from defendants' convictions (at a joint trial) for burglary and aggravated assault. We affirm.

I.

The following facts are derived from the trial record. On February 2, 2008, at approximately 1:20 p.m., Stanley Cagle1 left his apartment to go to an insurance agency in Linden. According to Mr. Cagle, as he walked down the street, he observed a group of individuals having a tailgate party to celebrate the New York Giants playing in the Super Bowl the next day. He then heard someone at the party, whom he would later identify as co-defendant Clarence Lewis (Lewis), yell "[t]ell all of the boys down at the precinct that everything is alright over here, you cracker . . . mother fucker." Mr. Cagle exchanged profanities with Lewis and returned to his home, where he met his wife on the porch.

As Mr. and Mrs. Cagle proceeded inside, Lewis entered their yard. Lewis then walked up to a window and had a conversation with Mrs. Cagle, who attempted to calm the situation. Soon thereafter, the Cagles heard their front door being kicked in. Eventually, the door came off its hinges and Lewis entered the home. Another man, later identified as co-defendant Steven Gilmore (Gilmore), came into the home as well.

At that point, Mr. Cagle claims he pushed Gilmore, who fell over the couch. He then observed Gilmore knock a phone out of Mrs. Cagle's hand. Thereafter, a fight ensued between Mr. Cagle and Lewis. Gilmore joined the fight and began punching Mr. Cagle in the face, causing a black eye.

Mr. Cagle claims he forced Lewis outside the apartment. He then began to swing a knife, which he had drawn from his utility belt, at Lewis, stabbing him several times. By that point, Gilmore had left.

Mr. Cagle later identified Lewis at the hospital as the man he stabbed. After he returned home, he identified Gilmore, whom he observed outside his home, as the second assailant.

Lewis claims Mr. Cagle started the fight by insulting his mother. After Mr. Cagle's words, Lewis said he followed Mr. Cagle to the gate outside of the Cagle home. According to Lewis, the two were forced through the gate by the other men at the tailgate party. Lewis, enraged by Mr. Cagle's insults, attempted to punch him, but Mr. Cagle blocked the punch, then stabbed him multiple times with a sheetrock knife.

On February 4, 2008, Gilmore gave a sworn statement to the police. He claimed he went into the building where the Cagles lived to visit an ex-girlfriend, whom he knew only as "Mook." He stated that when he entered the building, he observed a "Caucasian guy and a black guy" fighting, but denied any involvement or knowing the people involved.

In May 2008, a Union County grand jury indicted Lewis for second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count one); second-degree bias intimidation, contrary to N.J.S.A. 2C:16-1 (count two); and third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(3) (count three). Gilmore was also indicted on counts one and three.

Following a six-day trial in July 2009, a jury found Lewis and Gilmore guilty on counts one and three, and acquitted Lewis on count two. On September 4, 2009, the trial judge granted the State's application for an extended term for Lewis and merged count three with count one. He then sentenced Lewis to a thirteen-year state prison term, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the same date, the trial judge sentenced Gilmore on count one to a seven-year state prison term, with an eighty-five percent period of parole ineligibility, pursuant to NERA, and a four-year concurrent state prison term on count three.

II.

On appeal Lewis raises the following arguments:

POINT I: THE TRIAL COURT'S INSTRUCTIONS ERRONEOUSLY NEGLECTED TO INFORM THE JURORS THAT THEY COULD CONVICT DEFENDANT AS AN ACCOMPLICE TO THIRD DEGREE BURGLARY.

POINT II: THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III: DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL, AND HIS CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

With Lewis's first point, he contends that the trial court erred by failing to properly charge the jury regarding its option to convict him as an accomplice to third-degree burglary, rather than second-degree burglary. We disagree.

Lewis did not object to the jury charge. Thus, we apply the plain error standard. R. 2:10-2. A jury charge will not be considered plain error unless "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); R. 2:10-2.

We find no plain error in the trial judge's jury instruction. He properly instructed the jury that "in order to convict the defendant as an accompli[ce] to the specific crimes charged, you must find that the defendant had the purpose to participate in that particular crime." He also gave the jury a detailed description of the elements and relevant states of mind for third-degree burglary and second-degree burglary.

Lewis claims in his second point that the prosecutor's closing argument constituted prosecutorial misconduct, thereby depriving him of his right to a fair trial. This claim lacks merit.

A prosecutor is prohibited from using "improper methods calculated just to produce a conviction." State v. Loftin, 146 N.J. 295, 386 (1996). When considering whether a prosecutor's conduct should result in the reversal of a criminal conviction, the reviewing court "should determine whether 'the conduct was so egregious that it deprives the defendant a fair trial.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 324 (1987)).

Lewis's first argument of prosecutorial misconduct is that the prosecutor mischaracterized defense counsel's closing argument regarding the identification of Lewis. Although, the prosecutor appears to have misinterpreted defense counsel's argument, his response in summation did not have a palpable impact on the trial. The prosecutor stated:

And the most important thing that each of you do is evaluate this case from an objective, dispassionate lens. Don't listen to anything I say. Don't listen to anything [defense counsel] says. Trust your own eyes. Trust your own ears. If you are unclear on something, play it back. Get it right. That's the most important thing.

But one of the things you heard, and I wrote it down because it's important and I want to emphasize this point, nothing in the 911 call about bleeding that was said by counsel at 10:20 a.m., except for this fact, the very last line of the 911 call, and you can play it for yourselves is, yeah, I saw him, he's bleeding.

So you have a statement that nothing in the 911 call about bleeding. You can listen with your own ears and read it with your own eyes and see if that's the case, see if the very last line and the very last thing said by a victim in this case was whether or not there was bleeding. Don't listen to me, don't listen to [defense counsel], listen to the tape.

What defense counsel actually stated in his summation is that there was nothing in Mrs. Cagle's 911 phone call to indicate Lewis was stabbed and bleeding inside the apartment. Specifically, defense counsel said: "And no testimony, no -- nothing in the 911 call about anyone in her apartment that's bleeding[.]" (emphasis added).

In response to defense counsel's objection to the prosecutor's statement, the trial judge indicated he would instruct the jury that "they are the judges of the facts and if their understanding as to what the lawyers says is different, they are to be controlled by . . . their own understanding of the facts[.]"

We find no malicious intent behind the prosecutor's misstatement and conclude that the trial judge's jury instruction was sufficient to cure any effect the statement may have had on the jury.

Lewis alleges further prosecutorial misconduct regarding the prosecutor's assertion in summation that Lewis admitted to being on the Cagles' porch. Lewis did not object to this statement at trial.

Generally, improper remarks will not be deemed prejudicial if they are not objected to at trial. State v. Timmedequas, 161 N.J. 515, 576 (1999). However, even where defense counsel does not object, "[a] prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved." Ibid. (quoting State v. Long, 119 N.J. 439, 483 (1990)).

A review of the record indicates that Lewis did not admit to being on the Cagles' porch. As such, the prosecutor's statement to the contrary was indeed inaccurate. However, as with the other comments, the trial judge's instruction to the jury that they not rely on the factual assertions made by counsel adequately addressed the prosecutor's mistaken assertion.

We find Lewis's final two points to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2).

As to Lewis's third point, Lewis failed to move for a new trial and therefore is barred from arguing on appeal that his conviction was against the weight of the evidence. R. 2:10-1. Regardless, the claim lacks substantive merit, as the record clearly contains sufficient evidence to support his conviction.

Finally, we do not agree with Lewis's final point that he received an excessive sentence. At sentencing, the trial judge considered the aggravating factors and the ramifications of NERA. He thoroughly reviewed Lewis's record, which contains five indictable convictions, multiple disorderly persons offenses, four municipal court convictions, and two juvenile adjudications. Lewis's extensive record and the nature of the crime supported the findings of aggravating factors three, six, and nine, N.J.S.A. 2C:44-1a(3), (6), (9) applied. The trial judge noted no mitigating factors, nor do we. After careful review, we are satisfied that Lewis's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

III.

On appeal Gilmore raises the following arguments:

POINT I: THE TRIAL COURT ERRED IN NOT SEVERING THE DEFENDANTS AND HOLDING SEPARATE TRIALS (NOT RAISED BELOW)

POINT II: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE

POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED

With his first point, Gilmore argues that he was prejudiced by the trial court trying Lewis and him together rather than holding separate trials. We disagree. Because Gilmore did not object to the joint trial in the trial court, we apply the plain error standard. R. 2:10-2.

Pursuant to R. 3:7-7, "[t]wo or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."

Trying co-defendants jointly is preferable due to the interests of judicial economy and because it avoids the possibility of inconsistent verdicts and enables "'more accurate assessment of relative culpability[.]'" State v. Brown, 118 N.J. 595, 605 (1990) (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S. Ct. 1702, 1708, 95 L. Ed. 2d 176, 187 (1987)). Additionally, it "spare[s] witnesses and victims the trauma of testifying about the same event two or more times." State v. Sanchez, 143 N.J. 273, 281-82 (1996).

In this matter, Lewis's defenses were not antagonistic or mutually exclusive to Gilmore's and Gilmore's defenses were not antagonistic or mutually exclusive to Lewis's. Furthermore, neither defendant implicated the other. Thus, holding separate trials was not mandatory. Brown, supra, 118 N.J. at 606. ("[S]eparate trials are required only when defendants 'present defenses that are antagonistic at their core.'") (quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. 1981)).

We do not agree with Gilmore's contention that the bias count (count two) against Lewis prejudiced the jury against him. The trial judge specifically instructed the jury that "Count [two] only applies to Mr. Lewis[.]" Moreover, the jury acquitted Lewis of count two. Likewise, we find no merit in Gilmore's argument that Lewis would have been able to provide exculpatory testimony if Gilmore had a separate trial. Lewis testified at the joint trial that he did not see Gilmore on the day in question. There is nothing more beneficial that Lewis potentially could have said at a separate trial to help Gilmore's case. Finally, we find Gilmore's guilt by association argument unconvincing, as our Supreme Court has determined such arguments insufficient to justify the need for a separate trial. Brown, supra, 118 N.J. at 605.

Gilmore's final two points are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2).

As to Gilmore's second point, like Lewis, Gilmore failed to move for a new trial and is barred from arguing on appeal that his conviction was against the weight of the evidence. R. 2:10-1. Regardless, we note Gilmore's claim likewise lacks substantive merit, as the record clearly contains sufficient evidence to support his conviction.

Finally, We do not agree with Gilmore's contention that he received an excessive sentence. At Gilmore's sentencing, the trial judge found that Lewis was the leader in this case and Gilmore was the "follower." He carefully reviewed Gilmore's record, which contains seven municipal court convictions, two indictable convictions, and a probation term that he was serving when he committed the burglary. Based on Gilmore's record and the nature of the offense, the trial judge appropriately found aggravating factors three, N.J.S.A. 2C:44-1(a) (3) (likelihood that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a) (6) (extent of prior record); and nine, N.J.S.A. 2C:44-1(a) (9) (need to deter defendant and others from violating the law). We do not find the trial judge erred by determining that no mitigating factors applied. Likewise, we are satisfied that Gilmore's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; Roth, supra, 95 N.J. at 363-65.

A

1 Because the two victims share the same last name, we will refer to them as "Mr. Cagle" and "Mrs. Cagle" for clarity.