STATE OF NEW JERSEY v. PERRY ALSTON (2013)

In a seven-count indictment, defendant Perry Alston and co-defendant James Woods were jointly charged with first-degree armed robbery, N.J.S.A. 2C:15–1(a)(1) (count one);  third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39–4(d) (count two);  fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39–5(d) (count three);  second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5–2 and N.J.S.A. 2C:15–1(a)(1) (count four);  and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29–2(a) (count six).   Defendant was separately charged with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35–10(a)(1) (count five);  and third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35–10.5 (count seven).   Following a jury trial in which he represented himself with the help of standby counsel, defendant was acquitted of count seven, but convicted of the remaining charges.

At sentencing on August 13, 2010, the court denied the State's motion to sentence defendant to an extended term as a persistent offender.   The court identified three aggravating factors:  the risk defendant will commit another offense, N.J.S.A. 2C:44–1(a)(3);  the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44–1(a)(6);  and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44–1(a)(9).   The court found no mitigating factors.   After merging counts two, three, and four into count one, the court sentenced defendant to a nineteen-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43–7.2. Defendant received concurrent five-year terms on counts five and six, and a consecutive four-year term for a violation of probation on a separate indictment.

Defendant presents the following arguments on appeal:

POINT I

THE PROSECUTOR IMPROPERLY COMMENTED DURING CLOSING ARGUMENTS ON THE DEFENDANTS' DECISION NOT TO TESTIFY.  (Not Raised Below)

A.  THE PROSECUTOR'S COMMENTS DURING CLOSING ARGUMENT WERE IMPROPER.

B. THE TRIAL COURT'S FAILURE TO GIVE AN IMMEDIATE CURATIVE INSTRUCTION WAS PLAIN ERROR.

POINT II

THE COURT BELOW ERRONEOUSLY NEGLECTED TO INSTRUCT THE JURY ON THE PERMISSIBLE INFERENCES OF FLIGHT UNDER STATE V. MANN.1 (Not Raised Below)

A. THE COURT SHOULD HAVE USED THE MODEL JURY CHARGE ON FLIGHT.

B. FAILURE TO CHARGE THE JURY ON FLIGHT WAS REVERSIBLE ERROR.

POINT III

AFTER READING BACK TESTIMONY TO THE JURY, THE COURT IMPROPERLY FAILED TO INSTRUCT THE JURORS TO CONSIDER THE EVIDENCE AS A WHOLE.  (Not Raised Below)

POINT IV

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED ALSTON OF A FAIR TRIAL.

We conclude from our examination of the record and the applicable law that defendant received a fair trial and we affirm.

Both co-defendants were tried together.²  Sergeant Rafael Martinez of the Camden City Police Department testified that on August 27, 2008, he was assigned to patrol the Broadway Avenue area of Camden.   Martinez testified that the area was designated a “high-crime” area where “a lot of drug sales” took place.

At around 2:00 p.m., Martinez was on routine patrol in a police vehicle on William Street behind a methadone clinic, when he “observed two black males and a white male standing in the parking lot” of the clinic.   The white male was later identified as the victim, Steven Phillips.   According to Martinez, the two black males, later identified as co-defendants, fled the scene when they observed his vehicle:

As soon as the two black males observed my presence, they were looking right at me, they immediately took off running.   Of course, I said something's going on.   I immediately drove up to the victim with my window rolled down from the passenger side.   He told me, “They just robbed me.”

Martinez chased the two individuals on foot and observed them enter an alleyway.   Martinez testified there was no exit from the alleyway, “so they had nowhere to go.”

As Martinez entered the alleyway, he instructed the two men “to stop and get down,” but they did not comply.   He then observed defendant “drop an object onto the ground,” and testified that Woods ran past him while he was trying to detain defendant.   According to Martinez, defendant said, “I was selling him pills.”   Martinez arrested defendant and found several different pills in a prescription pill container in his pocket.   Martinez also recovered the object that defendant dropped––a folding knife.   Other officers apprehended Woods.

Phillips testified at trial he was at the clinic for counseling and to receive methadone.   According to Phillips, he left the clinic between 12:00 and 12:30 p.m., and as he was leaving two men approached him and began to harass him:  “As I was approached, basically the gentleman pulled a knife out on me.   Another gentleman went for my wallet.   I tried to knock his hand down, away, a couple of times.   Then the one gentleman told the other gentleman to stab me.”   Phillips identified defendant as the man with the knife.   Phillips said he “flung” his wallet, containing “roughly” fifteen or sixteen dollars and his medication.   Woods took the money from the wallet and both men ran when they saw Martinez arrive.

Phillips followed Woods after he ran past Martinez and watched other officers detain him.   Phillips testified the police asked him how much money was stolen from his wallet, and he told them, “I believe it was a ten, a five, and a one, or a ten and six ones.”   According to Phillips, the money in Woods's pocket “was balled up and it was exactly what I said at the time.”   Phillips identified the knife collected by Martinez as the knife that was used in the robbery.

Neither defendant nor Woods testified or presented any witnesses.   In summation, defendant told the jury, “I want you to be mindful that a lot of the evidence could be confusing, but stick to the facts.   Stick to the facts.   If you don't see it, it don't exist.”

On appeal, defendant argues the prosecutor improperly commented during summation that, “No one was in a better position to observe what was going on than Steven Phillips as it was happening to him.”   According to defendant, this comment improperly suggested to the jury “the defendants would have testified if they were not guilty.”   Because defendant did not object at trial, the alleged error is reviewed for plain error.   See R. 2:10–2 (“Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.”).

It is well settled that “a prosecutor should not in either obvious or subtle fashion draw attention to a defendant's decision not to testify.”  State v. Cooke, 345 N.J.Super. 480, 486 (App.Div.2001), certif. denied, 171 N.J. 340 (2002).   Nevertheless, we must “consider the ‘fair import’ of the State's summation in its entirety.”  State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L. Ed.2d 817 (2008)).

In this case, the prosecutor's remark did not draw attention to defendant's failure to testify.   Rather, it was used to rehabilitate Phillips's credibility.   During his summation, counsel for co-defendant Woods argued Phillips was “involved in a drug transaction,” and the robbery “was all a ruse by Mr. Phillips to get out of the fact that he's a drug user still using drugs caught in the act of buying drugs.”   In response, the prosecutor argued:

Another factor [in determining credibility] is the witness's means of obtaining the facts in this case.   Well, Mr. Phillips was very clear in his testimony that Defendant Alston placed a knife to him and Defendant Woods went through his wallet, took his money and his medication.   No one was in a better position to observe what was going on than Steven Phillips as it was happening to him.

In addition, the jury was instructed as follows:

Defendant Perry Alston elected not to testify at trial.   It is his Constitutional Right to remain silent.   You must not consider for any purpose or in any manner in arriving at your verdict the fact that Defendant Perry Alston did not testify.   That fact should not enter into your deliberations or discussions in any manner at any time.   Defendant Perry Alston is entitled to have the jury consider all evidence presented at trial.   He is presumed innocent whether or not he chooses to testify.

Under these circumstances, we find no error.

Defendant next argues the trial court's failure to charge the jury on flight was reversible error.   During the charge conference defendant objected to the inclusion of the flight charge, and his objection precludes him from urging reversal on appeal.   See Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996) (“The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.”);  State v. Harper, 128 N.J.Super. 270, 277 (App.Div.) (“Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.”), certif. denied, 65 N.J. 574 (1974).   Furthermore, the court's failure to charge flight did not prejudice defendant's right to a fair trial.

Defendant also argues that after testimony of Martinez and Phillips was read back to the jury, the court failed to “take any measures to ensure that the jury would not unduly emphasize particular portions of the testimony over the evidence as a whole.”   Because defendant did not object at trial, we review for plain error.   R. 2:10–2.

“In responding to a request to review testimony, the trial court's focus should be on the proper controls and limits needed to ensure a fair proceeding․  Courts have broad discretion as to whether and how to conduct read-backs.”  State v. Miller, 205 N.J. 109, 122 (2011).   In Miller, the Court provided “guidelines for the playback of video testimony” and noted that “read-backs and playbacks [of video testimony] present similar concerns.”   Ibid. One of the guidelines instructed judges to “take precautions to prevent juries from placing undue emphasis on the particular testimony that is replayed.   To that end, at the time the testimony is repeated, judges should instruct jurors to consider all of the evidence presented and not give undue weight to the testimony played back.”  Id. at 123.

In this case, the testimony of Martinez and Phillips was read to the jury in its entirety.   Because neither defendant testified, the read-back testimony constituted the bulk of the evidence presented at trial.   Moreover, prior to deliberations, the court instructed the jury to determine whether or not “defendant [had] been proven guilty beyond a reasonable doubt

․ based on all the evidence presented during the trial.”   Thus, we are satisfied that any possible error did not have the capacity to affect the outcome of the trial.

In his final argument defendant asserts that the “cumulative effect” of the errors at trial “undermined [his] constitutional right to a fair trial.”   However, we are satisfied that none of the errors alleged by defendant, individually or cumulatively, warrant the granting of a new trial.  State v. Orecchio, 16 N.J. 125, 129 (1954).

Affirmed.

FOOTNOTES

FN1. 132 N.J. 410 (1993)..  FN1. 132 N.J. 410 (1993).

FN2. We set forth essentially the same facts in co-defendant Woods's appeal, Docket No. A–1010–10, which is being filed simultaneously with this opinion..  FN2. We set forth essentially the same facts in co-defendant Woods's appeal, Docket No. A–1010–10, which is being filed simultaneously with this opinion.

PER CURIAM