STATE OF NEW JERSEY v. WILLIAM A. BROWN, JR

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM A. BROWN, JR.,

Defendant-Appellant.

__________________________________________________

October 1, 2015

Submitted September 22, 2015 Decided

Before Judges Fisher and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 11-04-0454 and 11-04-0457.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant argues he was deprived of a fair trial, claiming the prosecutor exceeded the proper bounds of advocacy in his summation. Although the prosecutor skirted that boundary, we find no reason to reverse.

At the conclusion of a seven-day trial, a jury acquitted defendant of third-degree receiving stolen property, N.J.S.A. 2C:20-7, but convicted him of: third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree CDS distribution, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3); and second-degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1(a). After this verdict was rendered, defendant pleaded guilty to the second-degree of being a person not permitted to be in possession of weapons, N.J.S.A. 2C:39-7, which was charged in a separate amended indictment. Later, the judge denied defendant's motion for a new trial and, after appropriate mergers, sentenced defendant to a six-year prison term, subject to a three-year period of parole ineligibility, on the CDS distribution conviction, and a consecutive six-year prison term, also with a three-year parole disqualifier, on the conviction for possessing a weapon during a CDS offense. He also sentenced defendant to a concurrent five-year prison term, subject to a five-year period of parole ineligibility, on the certain-persons conviction.

In this appeal, defendant argues only

THE PROSECUTOR'S MISCONDUCT, INCLUDING COMMENTS SUGGESTION THAT DEFENDANT HAD A DUTY TO PRESENT EVIDENCE, DENIED DEFENDANT A FAIR TRIAL, U.S. CONST. Amend. XIV; N.J. Const. art. I, 1 (Partially Raised Below).

Although we regrettably observe that the prosecutor crossed the boundary of proper advocacy, a new trial is not required.

To put defendant's argument in its proper setting, we observe that the State sought to prove that, when a car in which he was riding was stopped by police, defendant was in possession of seventy-eight wax folds of heroin inside a jacket pocket; a BB gun, which the State sought to prove was also in defendant's possession, was found inside the vehicle. One of the passengers testified she saw defendant place the BB gun on the vehicle's floor; the defense theory was that the jacket, drugs, and gun actually belonged to that passenger.

Defendant contends that the prosecutor prejudiced his right to a fair trial by commenting on his failure to provide evidence to support his theory. Specifically, in regard to defense counsel's contention in his summation that there was a lack of proof as to whether the jacket containing CDS was defendant's jacket, defendant refers to the prosecutor's response to the jury that: "you didn't hear any evidence about that Mr. Brown was not wearing this coat"; "again, there's nothing that says that he was not wearing that coat"; and "[t]here is no evidence that he was not wearing his coat." On another subject, after defense counsel criticized the scope of the investigation in his summation, the prosecutor directly responded that "neither did the defense present an expert who would testify to what [defense counsel] pretty much testified to in his closing, which was that you can find little pieces of D.N.A. in a handle of a gun." And defendant contends his right to a fair trial was further infringed when the prosecutor referred to him as an "attack dog."

To be sure, a prosecutor is entitled to considerable leeway in arguing to the jury in summation, but the Fifth Amendment bars an argument that uses the accused's failure to testify or present evidence as a means of suggesting to a jury that the accused must establish his innocence or as a means of suggesting that the State has a lesser burden of proof. See State v. Sinclair, 49 N.J. 525, 548-49 (1967); State v. Scherzer, 301 N.J. Super. 363, 439 (App. Div.), certif. denied, 151 N.J. 466 (1997). But, when considering whether such an impropriety warrants a new trial, a court must consider the context in which the statements were made and also whether the comments are responsive to a summation from a defendant that may have taken liberties with the record. See State v. Engel, 249 N.J. Super. 336, 380-83 (App. Div.), certif. denied, 130 N.J. 393 (1991); see also United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1, 10 (1985).

Here, we agree the comments regarding defendant's failure to deny ownership of the coat were improper, but, prior to giving his full charge, the judge pointedly reminded the jury that the burden always remains with defendant and that the prosecutor's comments that defendant may have failed to testify, call witnesses or produce evidence, were to be disregarded. He then asked the jury whether they understood this instruction, and the transcript reveals not only that jurors verbally responded in the affirmative but also, as the judge observed without contradiction, that "all of you are shaking your heads in the affirmative." We assume the jury adhered to the judge's thorough and forceful instruction. See State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Manley, 54 N.J. 259, 270 (1969). Although the judge did not repeat the offending comments to advise the jurors what it was that they were to disregard, the instruction clearly would have been understood to apply to the prosecutor's comments about ownership of the coat and the argument concerning defendant's failure to call an expert to opine on the availability of DNA evidence from the handle of the BB gun. In this latter respect, however, we would also observe that the prosecutor's comments, taken in context, were a fair response to defense counsel's factually-unsupported summation on this same subject. And, while we agree that the prosecutor's reference to defendant as an "attack dog" was also improper, defense counsel did not object; consequently, we do not view the prosecutor's impropriety as causing prejudice. See State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Irving, 114 N.J. 427, 444 (1989).

We find all other discernible arguments posed by defendant to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.