STATE OF NEW JERSEY v. MARK PARKER MARK BASSAN CRAIG JONES MARC PARKNER MARK PARKER (2013)

A jury convicted defendant of second-degree eluding, N.J.S.A. 2C:29–2b (count six).   After denying the State's motion to sentence defendant to an extended term as a persistent offender, the court imposed a seven-year custodial term.

On appeal, defendant raises the following points:

POINT I

WHEN THE PROSECUTOR ELICITED INADMISSIBLE “OTHER CRIME” AND/OR “BAD ACTS” EVIDENCE CONTRARY TO WELL–ESTABLISHED LAW AND THE JUDGE'S RULING, THE JUDGE FAILED TO DECLARE A MISTRIAL AND INSTEAD PROVIDED A CONFUSING AND INCOMPLETE LIMITING INSTRUCTION.   MOREOVER, BY INTENTIONALLY ELICITING INADMISSIBLE TESTIMONY, THE PROSECUTOR ENGAGED IN EGREGIOUS MISCONDUCT.   MR. PARKER'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE THEREBY VIOLATED.  (Partially raised below).

A. The Judge Failed to Declare a Mistrial When the Prosecutor Intentionally Elicited Inadmissible Testimony about Other Crimes, but Provided a Confusing Limiting Instruction.

B. By Eliciting Testimony that had been Ruled Inadmissible Other–Crimes Evidence, the Prosecutor Engaged in an Egregious Act of Misconduct.

POINT II

THE SEVEN–YEAR SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE BECAUSE THE JUDGE MISAPPLIED AGGRAVATING FACTORS AND FAILED TO FIND APPLICABLE MITIGATING FACTORS.

After analyzing the record, the applicable law and the arguments advanced in support of each point, we affirm defendant's conviction and sentence.   We reject defendant's argument that testimony elicited during the trial that a summons was issued for an uninsured motor vehicle should have resulted in a mistrial or that the court's limiting instruction to the jury that it should disregard this particular testimony was confusing.

Prior to the arresting officer's testimony, the court ruled that there should be no reference to defendant's suspended license status or that a summons had been issued for an uninsured motor vehicle.   Notwithstanding this ruling, after the officer responded to questions about what summonses were issued as a result of the incident, the prosecutor posed the following question:  “I believe [there was] one other motor vehicle summons you had issued.   It was S–30. I don't think you told us about that.   What was S–30 issued for?”   Defense counsel did not object to the question at that point.   However, after the officer responded, “It was [an] uninsured motor vehicle,” defense counsel requested a sidebar and voiced his objection.   The court agreed the question was improper and proposed a limiting instruction in which the court would instruct the jury to disregard the testimony, not to forget it, but not to use it in any fashion.   When the court asked defense counsel whether this proposed instruction was satisfactory, defense counsel responded, “Judge, I think that's all you can do short of granting a mistrial.”   The court instructed the jury as follows:

Ladies and gentleman, there was a question in the beginning of a response with regard to an uninsured vehicle.   I'm going to instruct you to disregard it.

What does that mean?   That means this:  I don't want you to forget that it was said because when you go back to deliberate I want you to remember it was said, but you're not allowed to use it.   That should not become part of your deliberations.   You should not use it in any way.

Because defendant failed to object to the language of the curative instruction, “we review the [instruction] for plain error and reverse only if such an error was ‘clearly capable of producing an unjust result.’ ”  State v. Miller, 205 N.J. 109, 126–27 (2011) (quoting R. 2:10–2).  “Pursuant to Rule 1:7–2, defendant's failure to object [to a curative instruction] constitutes a waiver of his right to challenge that instruction on appeal.”  State v. Docaj, 407 N.J.Super. 352, 362 (App.Div.), certif. denied, 200 N.J. 370 (2009).  “If the defendant does not object to the [curative instruction] at the time it is given, there is a presumption that the [curative instruction] was not error and was unlikely to prejudice the defendant's case.”  State v. Singleton, 211 N.J. 157, 182 (2012).

The question was clearly improper.   However, as defense counsel noted to the court during the sidebar, it had just been established that the vehicle defendant had been operating was registered to Latoya Davis.   The prosecutor's response to defense counsel's objections unquestionably suggests that the question was deliberately asked, irrespective of the court's ruling.   The prosecutor stated:  “But I understand that it's out, but he was issued these summonses․  But I mean it's the circumstances under which he was acting.”   Nonetheless, the court provided the limiting instruction, which defense counsel did not contend was confusing at that time.   Nor did defense counsel request any further curative instruction.   Instead, defense counsel accepted the instruction as the best the court could do, short of a mistrial.   Thus, under the circumstances presented here, we find no error, let alone plain error, in the language of the court's curative instruction.

Likewise, while we agree the prosecutor's conduct was improper, we do not conclude the conduct was so egregious that defendant was deprived of a fair trial.   The arresting officer never testified that the summons he issued for an uninsured motor vehicle was actually issued to defendant, although it may be inferred from the witness's testimony.   However, given the testimony of Lotoya Davis acknowledging that she was the owner of the vehicle and that her license and registration privileges had been suspended, it is just as likely the jury associated the uninsured motor vehicle summons with Davis.   Moreover, even if the jury associated the summons with defendant, the court instructed the jury to disregard this testimony.   We presume the jury followed the court's instructions.  State v. Loftin, 146 N.J. 295, 390 (1996).

Finally, defendant's claim that the seven-year sentence imposed is excessive and that the court misapplied aggravating factors and failed to apply applicable mitigating factors are arguments without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).

Affirmed.

PER CURIAM