STATE OF NEW JERSEY v. MARVIN BROOKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN BROOKS, a/k/a SERB,

Defendant-Appellant.

________________________________

December 7, 2015

Submitted October 20, 2015 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-03-0706.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan J. Gaffney, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a judgment of conviction for second-degree burglary in violation of N.J.S.A. 2C:18-2 following a jury trial. We affirm the conviction, but remand for correction of the judgment of conviction.

We discern the following facts from the record. On October 27, 2012, defendant entered the apartment of his former girlfriend, Ms. Nesmith, and assaulted her. Ms. Nesmith told the police that she and defendant had lived together in the apartment, but that defendant had moved out after the couple had broken up. She stated that, on the day of the assault, defendant had called her and said he was coming over. Ms. Nesmith told police she was talking on the phone with her friend and saw defendant on the fire escape, when

[Brooks] saw me and went away and then he was in the hallway banging and kicking the door and telling me to let him in. He was making a lot of noise and I told him I wasn't going to open the door and to go away. In a minute or two he was on the fire escape, hitting and punching the window. He took a brick out of his pocket and broke the window. He came in and started hitting me with his hands and fists. I was on the floor and we were fighting. He stopped, got up and left. Then the police came.

Defendant was charged with second-degree burglary, third-degree eluding, and resisting arrest.1

At trial, Nesmith told the jury that the day before the incident, she had posted embarrassing naked photographs of defendant on an internet website because she was mad at him after he became romantically involved with another woman. He had called and said he was coming over after she refused to take the photographs offline. When defendant arrived, he knocked on the door and asked to be let in. Nesmith initially refused defendant entry and defendant walked around the back of the building to the fire escape. He cracked Nesmith's window with his hand, and after that he broke it with a brick. Nesmith then testified that she agreed to let defendant into the apartment through the front door. They argued and defendant punched and kicked her. By way of explanation, Nesmith said she told the police defendant entered the apartment without her consent because "she wanted [defendant] to be locked up," and that she "was mad because he put his hand on [her]".

Because Nesmith gave differing accounts of the incident, as part of the jury charge, the trial judge included three instructions without objection, including: credibility of witnesses; contradictory statements; and recanting witness instructions. Defendant was found guilty of second-degree burglary and sentenced to eight years in prison with an eighty-five percent term of parole ineligibility. This appeal followed.

On appeal, defendant's counsel raises the following points.

POINT I

THE TRIAL COURT's jury instructions on recanted statements, prior contradictory statements, and witness credibility were confusing and contradictory and improperly lowered the bar for the jury to find nesmith's police statement credible, which deprived defendant of a fair trial (not raised below)

POINT II

the judgment of conviction, which erroneously states that the defendant was convicted of resisting arrest, must be corrected

Defendant submitted a supplemental letter brief which raised the following issues:2

point I

Defendant was the subject of selective prosecution when it was apparent that the alleged victim had committed a crime in violation of N.J.S.A. 2c14-9(c) which violated his equal protection rights under the law u.s.c.a. const. amend 14

point II

The verdicts were sharply against the weight of the evidence, necessitating reversal

Defendant asserts that the three jury instructions on witness credibility offered differing standards for the jury to use in weighing Nesmith's testimony, and that these instructions were clearly capable of confusing the jury. We disagree.

Defendant conceded that he entered Nesmith's apartment and committed simple assault. He disputed the other elements of second-degree burglary: that he entered without license or privilege and that his purpose in entering was to commit an offense. He argues that the outcome of his case hinged upon which version of Nesmith's story the jury believed: the statement she gave to the police, or her trial testimony.

When we review the issue of error in a jury charge, we will not read the portion alleged as error in isolation. Rather, the charge must be read as a whole. State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 333-34 (1971)). Because defendant did not object to these jury instructions at the time of trial, we apply the plain error rule in determining if the error was "clearly capable of producing an unjust result." R. 2:10-2; R. 2:10-2, R. 1:7-2.

In charging the jury, the trial judge gave instructions using the Model Criminal Final Charge concerning the credibility of witnesses, which are the standard instructions judges read in every criminal trial. The trial judge then instructed the jury using the prior inconsistent statement charge, followed by the recanting witness (substantive) charge, directing the jury to consider the fifteen A. Gross factors.3

Defendant asserts that the prior inconsistent statement charge undermines the more rigorous analysis required under the recanting witness charge, because an inconsistent statement and a recantation are not the same thing. He asserts that because Nesmith omitted telling the police that the reason defendant came to her apartment was because she had posted nude pictures of him on the internet, arguably an invasion of privacy under N.J.S.A. 2C:14-9, her statement was designed to exculpate herself. He also asserts the three distinct charges were self-contradictory and confusing.

The trial judge instructed the jury that "before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all of the circumstances under which the statement or failure to disclose occurred." The trial court also instructed that

[i]n regard to the testimony of [Ms.] Nesmith and on direct and cross-examination, inconsistencies were shown between prior statements and those given on the stand. The witness gave reasons therefore saying such prior statements were untrue. As the Court recalls the reason given were that the witness was angry at [d]efendant and wanted him to get, quote, "locked up." However, it's your recollection that controls. The extent to which such inconsistencies or omissions reflect is for you to determine. Consider their materiality to . . . her entire testimony and all the evidence in the case. When, where and the circumstances under which they were said or omitted and whether the reasons she gave you therefore . . . appear to you to be believable and logical.

The court further instructed that

[e]vidence has been presented showing that [at] a prior time [Ms.] Nesmith has said something or has failed to [say] something which is inconsistent with the witness' testimony at trial. In deciding whether any statement, if any sub statement, if made, is credible you should consider any relevant factors including the following: One, [Ms.] Nesmith's connection to and interest in the matter reported in her prior statement. Two, the person or person[s] to whom she gave the statement. Three, the place and occasion for giving the statement. Four, whether [Ms.] Nesmith was then in custody or otherwise the target of investigation. Five, the physical and mental condition of [Ms.] Nesmith at the time. Six, the presence [or] absence of other persons. Seven, whether [Ms.] Nesmith incriminated herself or sought to exculpate herself by the statement. Eight, whether the writing is in [Ms.] Nesmith's hand. Nine, The presence o[r] absence, and nature of, any interrogation. Ten, whether the writing contains all, or only a portion or summary, of what [Ms.] Nesmith said. Eleven, the presence or absence of any motive to fabricate. Twelve, the presence or absence of any explicit or implicit pressures, inducements[,] or coercion for making the statement. Thirteen, whether the use to which the authorities would put the statement was apparent or made known to [Ms.] Nesmith. Fourteen, the inherent believability or lack of believability of the statement. Fifteen, the presence or absence of corroborating evidence.

When read as a whole, these jury instructions are not clearly capable of producing an unjust result. R. 2:10-2. The overall charge was neither self-contradictory nor confusing. Moreover, the instructions included all of the relevant considerations for the jury to determine the authenticity and reliability of the witness's testimony and prior statements including her motives.

We also reject the arguments raised in defendant's pro se supplemental letter brief. We disagree that defendant was subjected to selective prosecution because Nesmith was not prosecuted for invasion of privacy under N.J.S.A. 2C:14-9(c). In order to raise a colorable claim of selective prosecution, the defendant must show that "similarly situated individuals of a different class were not prosecuted for similar crimes." State v. Halsey, 340 N.J. Super 492, 501 (App. Div. 2001), certif. denied, 171 N.J. 443 (citing United States v. Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 1487, 134 L. Ed. 2d 687, 699 (1996)). Defendant and Nesmith were not similarly situated wrongdoers, and the crime that defendant alleges Nesmith committed (invasion of privacy) is not similar to those that he committed (burglary). Defendant alleges no convincing fact that draws similarities between his criminal activity and any criminal activity that Nesmith allegedly performed.

We also reject defendant's claim that the jury verdict was against the weight of the evidence. Defendant argues for the first time that his conviction was against the weight of the evidence adduced at trial. When a trial court considers a motion for a new trial, the court should not overturn the jury verdict as against the weight of the evidence "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witness, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. On appeal, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (explaining that a miscarriage of justice occurs when a trier of fact could not have rationally found the essential elements of a crime beyond a reasonable doubt).

In order for a court to engage in an analysis concerning the weight of the evidence, however, a new motion should have been made at trial. Ibid. In the absence of such a motion, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal . . . ." R. 2:10-1. Although we need not entertain a weight of the evidence argument in the absence of a new trial motion, we may nevertheless choose to do so in the interest of justice, particularly in criminal appeals, because the "evidence may implicate constitutional rights which are not at stake in a civil appeal." Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 363 n.1 (App. Div. 1998) (citing State v. Smith, 262 N.J. Super 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993)).

When substantively reviewing a jury's verdict, an appellate court must accept all the supporting evidence and all permissible inferences therefrom as true. Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.) (citation omitted), certif. denied, 162 N.J. 130 (1999); Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super 448, 489 (App. Div.), (citation omitted), certif. denied, 212 N.J. 198 (2012). As our Supreme Court stated in State v. Afanador, "[f]aith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." 134 N.J. 162, 178 (1993). "Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Ibid.

Here, defendant cites the inconsistencies in Nesmith's testimony and the fact that police took no photographs of her injuries as evidence in support of his argument on appeal. However, a review of the record indicates there was enough evidence for a jury to convict. The jury could reasonably have found Nesmith credible, and were presented with other evidence such as the testimony about 911 calls, the blood found in Nesmith's apartment, broken glass, and the brick found on defendant's person. When providing "due regard to the opportunity of the jury to pass upon the credibility of the witnesses," there is no apparent denial of justice under the law. R. 3:20-1.

Finally, defendant also argues that the judgment of conviction erroneously indicates that defendant was convicted of resisting arrest and must be corrected. During a pretrial motion the resisting arrest charge was downgraded to a disorderly persons offense and ultimately dismissed. The state concedes this point. The matter will be remanded to amend the judgment of conviction.

Affirmed in part, remanded in part. We do not retain jurisdiction.

1 The resisting arrest charge was dismissed, as was the eluding charge. The State agrees that the judgment of conviction is incorrect.

2 We note here that we present the issues as written in defendant's supplemental filing verbatim.

3 In State v. A. Gross, 121 N.J. 1 (1990), our Supreme Court directed trial courts to consider fifteen factors in determining whether prior inconsistent statements are reliable and thus admissible as substantive evidence. Some of the enumerated factors deal with authentication issues such as the place or occasion for giving a statement to police; whether the writing is in the declarant's hand; and whether the statement contains the entirety or only a portion of the communication. Other factors deal with the reliability of such statements, especially when they are used in criminal proceedings. For example, in determining the reliability of such a statement, factfinders must consider whether the declarant was in police custody and/or the target of a criminal investigation, or whether the declarant sought to exculpate himself or herself when making the statement. Other factors concern questions that are within the ken of jurors to engender skepticism, such as the presence or absence of any motive to inculpate the defendant in order to exonerate him or herself; a motivation to gain revenge; or a motivation to curry favor with the authorities. Id. at 14.

In State v. Mancine, 124 N.J. 232, 253-55 (1991) the Court "found nothing untoward in allowing such a prior inconsistent statement, once subjected to such trials, to make up the bulk of (or the crucial link in) the substantive evidence of the crime . . . . [As long as,] the reliability of each of the prior inconsistent statements in those cases had been corroborated by independent evidence . . . [and] [s]pecial precautionary instructions [are] given to the jury to emphasize the unusual care that must be taken before convicting a defendant of a particular offense based solely on a recanted out-of-court prior inconsistent statement."