STATE OF NEW JERSEY v. EDWARD B. HOLLAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD B. HOLLAND, a/k/a

EDWARD L. HOLLAND, JAG

HOLLAND, MANN HOLLAND,

Defendant-Appellant.

August 19, 2014

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-11-00667.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried before a jury, defendant Edward B. Holland appeals his conviction of two controlled dangerous substance (CDS) offenses. The trial court sentenced defendant to an extended term of seven years in prison, with a three-year term of parole ineligibility. On appeal, defendant raises the following points for our consideration:

POINT I:

IMPROPER SUMMATION REMARKS, INDICATING THAT THE DEFENSE HAD NOT PRODUCED ANY EVIDENCE TO CHALLENGE THE STATE'S CASE, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (NOT RAISED BELOW).

POINT II:

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

Having reviewed the record, we do not find the State's summation improper nor do we find defendant received an excessive sentence. We affirm the conviction and the sentence.

I.

The facts relevant to this appeal are adduced from the trial record. On August 6, 2010, the Cumberland County Organized Crime Bureau, with the assistance of the Millville Police Department and the New Jersey State Police, executed a search warrant upon the person and the residence of defendant. The police entered the one-room apartment around 10:15 am and found defendant and three other individuals. Detective Joseph Hoydis arrived at the apartment a few minutes later, after the entry team had secured the apartment and taken the four individuals, including defendant, into custody. Detective Hoydis testified that once he arrived at the scene defendant had told him, "You got me, Hoydis. You got me. It's over. You got me." Defendant further said to Detective Hoydis, "I'm a man. I'll take you to it. You don't have to go crazy in there but do what you got to do."

After defendant was advised of his Miranda1 rights, which he acknowledged he understood, he directed Detective Hoydis to a pillow on the bed and said the drugs were in the pillow case. Detective Robert Bernard then examined the pillow case and found forty-six waxed-fold bags of heroin, stamped "Crazy." The total weight of the heroin in the bags was 11.969 grams. Additionally, a container on top of a dresser held various identification documents with defendant's name.

Defendant was then transported to the Millville Police Department. There, defendant provided a video-recorded statement to Detective Hoydis indicating all the heroin in the apartment belonged to him and him alone; he further stated he intended to sell at least some of the heroin.

On November 17, 2012, a Cumberland County Grand Jury charged defendant with third-degree possession of CDS (heroin) with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and third-degree possession of CDS (heroin), N.J.S.A. 2C:35-10(a)(1). Before trial, defendant unsuccessfully moved to suppress the evidence seized from his apartment as well as his statements to the police, which was denied. At trial, defendant also moved to suppress evidence of his prior conviction of a third-degree CDS offense. The court denied this motion but ruled, if defendant testified, the State would be permitted to elicit only that defendant was previously convicted of a third-degree crime.

Defendant did testify, and claimed he only told Detective Hoydis at the apartment that the drugs belonged to him to exonerate his companions, when, in fact, the heroin belonged to all the persons present. Defendant explained he did not tell the truth because he was afraid of Detective Hoydis and his admission to selling drugs reflected his fear of the detective and of going to jail. He also testified he was feeling sick and his head was cloudy from withdrawal symptoms when he made his formal statement at the police station.

In her opening statement, defense counsel told the jury:

The Assistant Prosecutor just laid out a very simple story. It's very cut and dry and, like most simple stories, there's more to the story than meets the eye.

And that's what I'm asking you, the jury to consider; that there's more to this story than meets the eye, what the [p]rosecutor has just told you.

Defense counsel returned to this theme in her summation, telling the jury: "As you recall, in the beginning of this case, I told you that there was more to this story than met the eye and that is exactly what we had."

In her summation, the prosecutor made the following remarks in response to defense counsel's "more-than-meets-the-eye" argument:

. . . [A]t the beginning of this case, [defense counsel] told you there was more to this story that meets the eye. She again just told you that there's more to the story than meets the eye.

I sat through the trial. You sat through the trial. I'm still waiting for this other stuff, other than what I told you is what happened on August 6, 2010. . . .

The jury found defendant guilty of both counts of the indictment. After merger, Judge James R. Swift imposed a mandatory extended term, N.J.S.A. 2C:43-6(f), of seven years imprisonment with a three-year period of parole ineligibility. This appeal followed.

II.

"Prosecutors are expected to assert vigorously the State's case and are given considerable leeway in delivering their summations[,]" State v. Daniels, 182 N.J. 80, 96 (2004) (citing State v. Smith, 167 N.J. 158, 177 (2001)), so long as the prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom. Smith, supra, 167 N.J. 158 at 178. "Not every improper prosecutorial statement will warrant a new trial." Daniels, supra, 182 N.J. at 96 A reviewing court may only reverse a criminal conviction if the prosecutor's comments "were 'so egregious that [they] deprived the defendant of a fair trial.'" Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999) (alteration in original)).

Nevertheless, the primary duty of a prosecutor is not to obtain convictions but to see that justice is done. State v. Ramseur, 106 N.J. 123, 320 (1987). "It is as much [the prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). As such, "[e]very time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated." State v. Sinclair, 49 N.J. 525, 549 (1967) (the statement the State's evidence was not contradicted was deemed improper); State v. Irizarry, 270 N.J. Super. 669, 675-76 (App. Div. 1994).

When a defendant fails to object to the prosecutor's comments at trial, the allegedly "improper remarks will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999). Because defense counsel did not object to the prosecutor's remarks and defendant's argument was not otherwise raised before the trial court, we review the alleged prosecutorial misconduct under the plain error standard, namely, whether the statement had the "clear capacity to bring about an unjust result and which substantially prejudiced . . . defendant's fundamental right to have the jury fairly evaluate the merits of his defense." Id. at 576-77 (citing R. 2:10-2). See also State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (stating a defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result" R. 2:10-2).

A prosecutor's otherwise prejudicial arguments may be deemed harmless if made in response to defense arguments. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001); State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). "A prosecutor may respond to an issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div. 1996). The prosecutor's "response to an issue injected by opposing counsel cannot be considered a foray beyond the evidence adduced at trial." Ibid.

Defendant maintains the State's summation violated his right to due process of law and a fair trial, claiming the remarks suggested the defense had not produced sufficient evidence to challenge the State's case. As noted, prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Defendant argues the prosecutor s comments improperly highlighted that the defense had done nothing affirmatively to show that the State had not met its burden, which improperly suggested defendant had a burden to introduce evidence to the jury. We disagree. The prosecutor's remarks were in direct response to a point made by the defense, a comment on the purported theme of defense counsel's opening statement and summation. Defense counsel opened the door and the prosecutor s remarks were in direct response to a point raised by the defense. Therefore, we find the prosecutor's remarks were fair comments in response to defense counsel's opening statement and summation.

Even if we were to find any of the prosecutor's comments improper, the statements were not clearly capable of producing an unjust result. State v. Macon, 57 N.J. 325, 335-41 (1971). Applying the plain error standard, we conclude any error was not capable of producing an unjust result because of the overwhelming evidence against defendant. Additionally, the judge made it clear in his charge that defendant had "no obligation or duty to prove his innocence or offer any proof relating to his innocence." After careful consideration of the legal argument advanced, in light of the record and the applicable legal principles, we reject defendant's contentions regarding the prosecutor's remarks.

Defendant also contends he received a manifestly excessive sentence. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215, (1989); State v. Roth, 95 N.J. 334, 336 (1984). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. State v. Bieniek, 200 N.J. 601, 608-09 (2010).

The application of these principles to the record of defendant's sentencing demonstrates that the sentence imposed was not unreasonable and defendant failed to show how his sentence shocks the judicial conscience. Defendant argues the trial court should have found mitigating factors one and two due to the small quantity of drugs and defendant's acknowledged addiction. However, the record establishes that 11.969 grams of heroin was recovered from defendant, an amount which is only 2.2 grams less than the 14.17 gram threshold for second-degree possession with intent to distribute. Further, defendant's admission of his intent to distribute the heroin belies any notion of no contemplated serious harm.

In sentencing defendant, Judge Swift found defendant's prior CDS conviction in 1999 rendered him extended-term eligible, and then considered defendant's criminal record in deciding the length of the sentence. The judge identified aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and concluded "the aggravating factors substantially outweigh the non-existent mitigating factors." The judge specifically found, the likelihood defendant will commit another offense based upon defendant's prior history and additional CDS charges pending under two Cumberland County Complaints (factor three); the extent of defendant's criminal record which includes thirty-two arrests, fifteen disorderly convictions, two indictable convictions, one violation of probation, and one violation of parole (factor six); and the need to deter defendant and others from violating the law (factor nine).

Therefore, we find defendant's prior criminal history, and prior sentences, which included a state prison term, established substantial evidence in the record supporting the aggravating factors and absence of mitigating factors, which the judge properly weighed. We conclude the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. Donnell, supra, 117 N.J. at 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984

Affirmed.

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