SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2640-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH BAUMAN,
Defendant-Appellant.
Submitted January 22, 1997 - Decided
February 27, 1997
Before Judges Michels, Kleiner, and Coburn.
On appeal from the Superior Court of
New Jersey, Law Division, Atlantic County.
Susan L. Reisner, Public Defender, attorney
for appellant (Mark S. Carter, Designated
Counsel, of counsel and on the brief).
Jeffrey S. Blitz, Atlantic County Prosecutor,
attorney for respondent (James F. Smith,
Assistant County Prosecutor, of counsel and
on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Defendant Joseph Bauman appeals from his conviction on
numerous counts of a superseding indictment returned by the
Atlantic County Grand Jury and from his sentence to an aggregate
prison term of twenty-three years with a ten-year period of
parole ineligibility.
The criminal charges relate to a series of acts occurring on
October 6, 7, and 8, 1992. At defendant's trial, he readily
acknowledged his guilt of the crimes charged, and offered no
specific evidence to rebut the State's proofs other than evidence
that he contends supports his defense of intoxication or,
alternatively, diminished capacity.
Defendant contends that the trial judge erred in:
(1) failing to instruct the jury, sua sponte, on the defenses of
intoxication and diminished capacity; (2) denying his motion to
dismiss the superseding indictment and to reinstate the original
indictment; (3) denying his motion for a new trial based on
prosecutorial misconduct; and (4) denying his motion for a
judgment of acquittal on one of his second-degree armed burglary
convictions. Defendant also maintains that the judge abused his
discretion by imposing an extended term on his third-degree
conviction of aggravated assault while eluding a police officer
and by imposing consecutive sentences for his conviction of
third-degree aggravated assault of a police officer and on one of
his second-degree armed burglary convictions.
We conclude that defendant's contentions, though requiring
substantial discussion, are without merit. We therefore affirm.
It is not necessary to describe each of the many crimes that defendant committed. A short review of the sequence of events will suffice. Defendant, a New York resident, stole a 1984 Volvo
with New York license plates, from an auto body repair shop on
Long Island, New York. Defendant drove to the Trump Plaza Hotel
in Atlantic City and parked in its parking garage. Defendant
proceeded to the casino floor and gambled at the blackjack
tables. At one point, defendant was winning approximately
$4,000. Defendant continued to gamble and thereafter lost the
entire $4,000 and any remaining money that he had brought with
him from New York.
Defendant then left the casino floor, returned to the Trump
Plaza parking garage, and slept in the Volvo. The next day,
October 7, he broke into numerous automobiles parked in the
garage and belonging to casino patrons and employees. Personal
property was removed from many of those automobiles. Defendant
then left the Trump Plaza and made his way up the Boardwalk to
another casino-hotel, the Taj Mahal. He entered the Taj Mahal
parking garage, broke into numerous automobiles, and removed
valuable personal property. Defendant, carrying these stolen
items, then returned to the Trump Plaza. On two occasions,
defendant had contact with Officer Jones of the Atlantic City
Police Department.
Among the many items that defendant stole were two
registered handguns and two registered rifles removed from two
different vehicles. From the proof it is clear that defendant
possessed these weapons when he thereafter entered other parked
motor vehicles. Additionally, defendant took a suitcase in which
he found Valium, which had been prescribed for the owner of the
suitcase.
Victims of defendant's crimes started reporting the thefts
to the casino security officers and the police. Defendant's
activities were also reported by a casino employee who spotted
defendant breaking into a car.
The next morning, October 8, 1992, Officer Jones witnessed
defendant acting strangely. As a result, defendant's description
was reported to the Atlantic City Police Department.See footnote 1 Defendant
took New Jersey license plates off of an automobile parked at a
nearby casino training school and placed those plates on the
Volvo. He then proceeded to depart Atlantic City.
Shortly before noon on October 8, 1992, Officers Harold Cooper and Thomas McGowan were on bicycle patrol at the intersection of Arkansas and Atlantic Avenues, about one-and-a-half blocks from the Trump Plaza, when they received a radio transmission to be on the lookout for a white Volvo with New York license plates loaded with stolen property. The officers spotted a Volvo traveling from the direction of the Trump Plaza. The officers pedalled up to the Volvo, which was stopped in traffic, and ordered defendant to pull his vehicle over. Defendant, who appeared very calm, looked at the officers and drove away at a
high rate of speed. The officers broadcasted a description of
the vehicle and its direction of travel--towards the Atlantic
City Expressway--over the radio.
At 12:08 p.m., Officer Cohen, who was in uniform in a marked
police unit, heard the alert and observed a white Volvo heading
out of Atlantic City on the expressway at a normal rate of speed.
Cohen activated his unit's overhead lights, pulled defendant over
to the side of the road, and after exiting his vehicle with his
weapon drawn, ordered defendant, who looked "a little panicky,"
to turn off his motor, drop the car keys out the window, and
place his hands on the steering wheel. Defendant did not comply
but, instead, drove away at a high rate of speed. Cohen pursued
defendant's vehicle and broadcasted his pursuit over the police
radio.
Detective Hurley, then traveling on the expressway, heard
Cohen's alert. Hurley looked in his rear view mirror and saw the
Volvo traveling on the shoulder of the road at about forty miles
per hour. Hurley attempted to change lanes in order to avoid the
oncoming Volvo, as the shoulder of the road was becoming
narrower. Hurley's car stalled and was struck in the rear by
defendant's vehicle, rendering Hurley unconscious and causing
other disabling injuries. Meanwhile, Cohen, who was still in
pursuit, observed defendant exit his vehicle wearing black pants,
a white shirt, work gloves, and a bandanna. Cohen watched
defendant run across the expressway and enter an adjacent marshy
area filled with tall weeds and a creek. Cohen lost sight of
defendant and called for backup assistance and the canine patrol.
At approximately 1:30 p.m., a canine patrol officer found
defendant laying in the mud, naked, and concealed under marsh
grass. The officer instructed defendant, who appeared calm, to
raise his hands and lock them on top of his head. When defendant
failed to comply, after several repeated commands, and instead
made a movement with his right hand, the officer ordered his dog
to apprehend defendant. The dog grabbed defendant with his
teeth. Defendant was then taken into custody by several other
officers. Defendant's clothing was found underneath his hiding
place.
Officer McGowan, who observed defendant as he was taken into
custody, described him as looking "a little weird." According to
McGowan, defendant was able to stand and walk.
State Trooper David Timko, however, claimed that defendant
was unable to stand or walk without support. According to Timko,
defendant staggered, appeared off balance, grasped for support,
and fell to the ground on his hands and knees. Defendant,
according to Timko, spoke in a loud and boisterous manner,
rambled at times, cried, and appeared very excited and nervous.
His eyes were watery and bloodshot. Although Timko did not smell
alcohol on defendant's breath, he believed that defendant was
under the influence of some type of intoxicant. Consequently,
Timko charged defendant with driving under the influence.
Defendant was transported to the Atlantic City Medical
Center's emergency department at about 3:00 p.m., where he
received treatment for cuts and abrasions, and a sample of his
blood was obtained. State Police laboratory tests disclosed that
there was no alcohol in defendant's blood. A drug test indicated
that defendant had taken an undetermined amount of the
tranquilizer Diazepam, commonly known as Valium.
Thereafter, defendant was transported to police headquarters
by Officer Janes. En route, defendant managed to slip out of one
of his handcuffs. Upon their arrival at headquarters, Janes
exited the police vehicle and opened the rear door. As he
attempted to assist defendant out of the vehicle, defendant
pushed Janes, causing him to fall to the ground, as defendant
escaped. Defendant ran down an alley and Janes radioed for help.
At about 4:20 p.m., Officer Bruno, in uniform in a marked
police vehicle, saw defendant running between two houses. Since
Bruno had heard the radio broadcast about defendant's escape, he
yelled at defendant to stop. Defendant ignored this command and
continued to run. Bruno exited his car and ran after defendant.
As Bruno approached, defendant turned around and swung the
handcuff that was still attached to his hand, hitting Bruno in
the head and hand. Bruno tackled defendant to the ground and
struggled with him for about one minute until other officers
arrived, who helped Bruno handcuff defendant. Bruno injured his
knee during the struggle, necessitating surgery. Defendant was
then transported to police headquarters after he was apprehended.
This series of events was the focus of the initial indictment
by the Atlantic County Grand Jury.See footnote 2
After failing to reach a plea bargain agreement, the
prosecutor obtained a superseding indictment, No. 93-11-2816-A,
which charged defendant as follows: third-degree theft by
receiving stolen property, N.J.S.A. 2C:20-7, (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), (count two);
first-degree robbery, N.J.S.A. 2C:15-1, (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), (count four);
fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3), (count
five); third-degree aggravated assault of a police officer,
N.J.S.A. 2C:12-1b(5)(a), (counts six, eight, and nine); third-degree aggravated assault while eluding a police officer,
N.J.S.A. 2C:12-1b(7), (count seven); fourth-degree eluding a
police officer, N.J.S.A. 2C:29-2b (count ten); fourth-degree
resisting arrest, N.J.S.A. 2C:29-2a(1), (counts eleven and
twelve); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2),
(count thirteen); third-degree burglary, N.J.S.A. 2C:18-2,
(counts fourteen, sixteen, eighteen, and twenty); fourth-degree
theft of moveable property, N.J.S.A. 2C:20-3a, (count fifteen);
third-degree theft of moveable property, N.J.S.A. 2C:20-3a,
(counts seventeen, nineteen, twenty-one, twenty-three, twenty-four, twenty-five, twenty-seven, and twenty-eight); second-degree
armed burglary, N.J.S.A. 2C:18-2, (counts twenty-two and twenty-six); fourth-degree credit card theft, N.J.S.A. 2C:21-6c(1),
(counts twenty-nine and thirty); third-degree unlawful possession
of a rifle, N.J.S.A. 2C:39-5c(1) (counts thirty-one and thirty-two); third-degree possession of a handgun without a permit,
N.J.S.A. 2C:39-5b (counts thirty-three and thirty-four); third-degree escape, N.J.S.A. 2C:29-5a, (count thirty-five), and
second-degree possession of a weapon by a convicted felon,
N.J.S.A. 2C:39-7b, (counts thirty-six, thirty-seven, thirty-eight, and thirty-nine).
Prior to trial, defendant unsuccessfully moved to dismiss
the superseding indictment and to reinstate the original
indictment. Defendant contended that the superseding indictment
was obtained because of prosecutorial vindictiveness arising from
defendant's refusal to accept the prosecutor's plea offer.
Prosecutorial vindictiveness, discussed in Part III, is a concept
that has received limited attention in prior opinions of this
court.
Also before trial, the State moved to dismiss counts three,
sixteen, and seventeen of the superseding indictment and obtained
an order of severance on counts thirty-six through thirty-nine.See footnote 3
During the trial, the trial judge dismissed count six at the
conclusion of the State's case. The jury acquitted defendant on
counts two, four, and eight but found defendant guilty on all
other remaining counts.
In his defense, defendant contended that he had little or no recollection of the events preceding his apprehension and attributed his lack of memory to either intoxication or diminished capacity. Defendant detailed his prior life's story. He acknowledged that he had three prior convictions for third-degree crimes, two in 1981 and one in 1984.
In 1983, defendant was diagnosed as having a schizoaffective disorder, severe depression, and a substance abuse problem. Defendant was hospitalized at the Mid-Hudson Psychiatric Center on three occasions between June 1983 and May 1984.
Following his discharge in May 1984, defendant earned an associates degree in business administration, a bachelor's degree in human behavior, and started earning credits towards a Masters
Degree in social work. During this period, defendant was
employed in a variety of positions. Defendant was, for a while,
an admitting clerk and patient representative at St. Claire's
Hospital; he later worked at Montefiore Medical Center as
assistant director of patient relations. In December 1990,
defendant began employment with the New York Board of Education
as a substance abuse prevention specialist, counseling students
who were at risk of becoming involved with drugs. While working
for the Board of Education, defendant also taught behavioral
courses as an adjunct professor for Mercy College.
Following his discharge from the hospital in May 1984,
defendant became actively involved with Alcoholic Anonymous and
Narcotics Anonymous, acknowledging that he was an alcoholic and a
drug addict. Defendant testified he was doing well with his
recovery but fell from the sobriety wagon in November 1991, when
he drank a six-pack of beer following an argument with his wife
about their finances. In March 1992, defendant began using crack
cocaine. Although defendant's usage was initially sporadic, by
September 1992, he was consuming several grams a day. Defendant
depleted his family savings and became overdrawn on all of his
credit cards.
Defendant informed his supervisor at the Board of Education
that he had an addiction problem and requested a thirty-day leave
of absence in order to enter a residential treatment program.
Defendant's request was denied and he was asked to resign.
Although he tried to gain admission to a detoxification program,
defendant's name was placed on a waiting list.
Defendant, who had been living with his wife and daughter in
a house that they owned on Long Island, left home on September
16, 1992. Defendant took some clothing and lived in his van for
several days. He used crack cocaine several times a day during
this period. Defendant eventually spent a few days at the home
of a friend in Port Chester, New York. While there, defendant
testified he was arrested for a motor vehicle infraction and was
handcuffed by the Port Chester police; however, he escaped, and
friends removed his handcuffs with a bolt cutter.
Defendant returned home and obtained some clothing and a
Trump Plaza courtesy card that bore his name. Defendant then
stole the Volvo and drove to Atlantic City.
Defendant further testified that while playing blackjack on
the evening of his arrival in Atlantic City, he was hearing
imaginary voices. He slept that night in his automobile. When
he awoke, he began to experience visual and auditory
hallucinations, which he had not experienced since 1984. He
claimed that he saw silhouettes of imaginary people sitting in
vehicles that were parked in the Trump Plaza garage. These
individuals mocked him and told him that he was a failure.
Consequently, defendant exited the Volvo and approached the
vehicles in which these imaginary individuals were seated in
order to confront his tormentors. Defendant claimed that he
asked these imaginary persons to leave him alone and that they
laughed at him and made derogatory remarks. In response,
defendant entered the vehicles and took "trophies" as a way of
stopping the hallucinations. Defendant acknowledged that he
entered some of the vehicles by breaking the windows with a
gloved fist. Other cars that he entered were unlocked.
Defendant placed the items that he obtained from these vehicles
into the Volvo. Defendant then proceeded to the Taj Mahal where
he also entered automobiles and removed property found in those
vehicles. He carried the items in two suitcases to the Trump
Plaza parking garage. Defendant denied that he took the items
for monetary reasons.
The remainder of defendant's testimony focused on his
attempt to elude the police, his initial apprehension, his escape
into the swamp, and his ultimate apprehension. He claimed that
he did not realize that he was doing anything wrong when he
entered the automobiles and removed personal property. He did,
however, realize that his actions were illegal when he was
approached by the bicycle patrolmen, and he began to elude the
police, although denying any specific recollection of those
events. Although he denied using cocaine on October 7 or 8,
1992, he did admit that he consumed two or three Valium tablets
that had been taken from one of the parked automobiles.
As part of his defense, defendant presented two board certified psychiatrists, Dr. Frederick Erskine and Dr. Kenneth Weiss. The testimony of each deserves recounting.
Erskine testified that defendant has antisocial tendencies as manifested from his high school days when he began to use drugs. Defendant was diagnosed as psychotic with a schizoaffective disorder and hallucinations during his 1983-1984 hospitalizations. People with this disorder typically have manic-depression, schizophrenic reactions, delusions, hallucinations, disordered thinking, bad judgment, impulsiveness and distract-ability. Defendant, however, was in remission following his discharge from the hospital until November 1991, when he began a downward spiral. Defendant entered the manic phase of a manic-depressive reaction, and he began exercising bad judgment and acting impulsively.
Erskine opined that defendant was psychotic due to his schizoaffective disorder, delusional, in a manic episode, and not thinking in a straightforward manner at the time he broke into the vehicles. Although defendant's cognitive capacity was fairly intact and he had the ability to perform purposeful, goal-directed activities and to understand the nature and quality of his acts, defendant was unable at the time to understand that what he was doing was wrong. Defendant's ability to determine right from wrong was diminished. Defendant's reasoning and knowing capacities were not impaired, but his judgmental capacity
was very impaired. He acted impulsively in order to obtain items
that he could fence in exchange for money for gambling. Erskine
also opined that defendant was in a psychotic state when he was
being chased by the police as evidenced by his auditory
hallucinations. He did, however, act in a purposeful and knowing
manner at that time.
Weiss opined that on October 7 and 8, 1992, defendant was
suffering from a mental disease state in the form of cocaine
abuse and dependence. In addition, defendant had secondary
diagnoses which were caused by his cocaine problem, i.e., organic
hallucinosis which was manifested by hearing voices and seeing
things that were not there and organic delusional syndrome which
was manifested by believing things that were not true. Although
defendant understood the nature and quality of his acts on
October 7 and 8, 1992, he suffered from a defective reason and
his mental disease state prevented him from knowing that what he
was doing was wrong.
In rebuttal, the State presented the expert testimony of
Dr. Daniel Greenfield, who is board certified in psychiatry and
addiction medicine. Greenfield concluded that although defendant
had a chronic schizoaffective disorder, it was in remission at
the time of the instant crimes. He explained that people
suffering from schizoaffective disorder can distinguish right
from wrong. In his opinion, defendant was sane at the time that
he committed the criminal acts since he knew the nature and
quality of his acts and was able to distinguish right from wrong.
Defendant's conduct consisted of complex, goal-directed, knowing
and purposeful acts that required memory of the recent past,
awareness of the present, and an ability to anticipate future
consequences and events. Defendant fled from the police because
he knew he was in trouble and knew that what he had done was
wrong. Any delusions or auditory and visual hallucinations that
defendant may have experienced as a result of his schizoaffective
disorder were not powerful enough to have overcome his knowing,
purposeful and goal-directed behavior.
Prior to sentencing defendant moved for a new trial on the grounds that: (1) the verdict was against the weight of the evidence; and (2) that the prosecutor made improper remarks during his summation. Both motions were denied.
Thereafter, defendant was sentenced. After merging defendant's conviction on count five into his conviction on count seven, the judge granted the State's motion for an extended term on count seven since defendant was a persistent offender. The court imposed a nine-year prison term with a four-year parole ineligibility period on count seven; a consecutive five-year term, with a two-year parole ineligibility period on count nine; and a consecutive nine-year term, with a four-year parole ineligibility period on count twenty-two. Concurrent eighteen-month terms were imposed on counts ten, eleven, twelve, thirteen, fifteen, twenty-nine, and thirty. A concurrent nine-year term,
with a four-year parole ineligibility period was imposed on count
twenty-six. Concurrent five-year terms were imposed on counts
one, fourteen, eighteen, nineteen, twenty, twenty-one, twenty-three, twenty-four, twenty-five, twenty-seven, twenty-eight,
thirty-one, thirty-two, thirty-three, thirty-four and thirty-five. Thus, defendant's aggregate sentence is a twenty-three
year prison term with a ten-year period of parole ineligibility.
In addition, defendant was fined $1,450 for the Violent Crimes
Compensation Board.
On appeal, defendant raises six points of error:
POINT I
DEFENDANT'S CONVICTIONS MUST BE REVERSED AS
THE TRIAL COURT FAILED TO CHARGE THE JURY ON
THE ISSUES OF INTOXICATION AND DIMINISHED
CAPACITY. [Point Not Raised Below.]
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING DEFENDANT'S MOTION TO DISMISSING
[sic] THE SUPERSEDING INDICTMENT NO. 93-11-2816-A AND PROCEEDING ONLY UNDER INDICTMENT
NO. 93-03-0758-A BECAUSE THERE WAS NOTHING
SUBSTANTIALLY NEW ADDED FROM THE ORIGINAL
INDICTMENT TO THE SUPERSEDING INDICTMENT.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
BECAUSE THE PROSECUTOR'S SUMMATION TO THE
JURY WAS IMPROPER AND DENIED THE DEFENDANT A
FAIR TRIAL.
POINT IV
DEFENDANT'S CONVICTION ON COUNT TWENTY-TWO
FOR ARMED BURGLARY MUST BE REVERSED AS THE
STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THE DEFENDANT WAS ARMED AT THE
TIME OF THE BURGLARY. (Not Raised Below).
POINT V
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
GRANTING THE STATE'S MOTION FOR AN EXTENDED
TERM PURSUANT TO N.J.S.A. 2C:44-3a.
POINT VI
THE TRIAL COURT COMMITTED ERROR IN IMPOSING
CONSECUTIVE SENTENCES RATHER THAN CONCURRENT
SENTENCES BECAUSE THE OFFENSES COMMITTED WERE
ESSENTIALLY AT THE SAME TIME.
In a pro se supplemental brief, defendant raises one point
of error, which alleges:
POINT I
THE PROSECUTOR'S CONDUCT DENIED DEFENDANT OF
FAIR AND FUNDAMENTAL TREATMENT BY IMPROPER
PROSECUTORIAL COMMENTS MADE DURING SUMMATION,
IN VIOLATION OF THE UNITED STATES
CONSTITUTIONSee footnote 4
As noted, defendant's allegations of error require some
discussion, yet we find those allegations without merit.
Defendant contends for the first time on appeal that the judge erred in failing to instruct the jury on the defense of intoxication, as per N.J.S.A. 2C:2-8, and that the judge erred by failing to charge the jury on the defense of diminished capacity, as per N.J.S.A. 2C:4-2.
Since defense counsel did not request a charge on intoxication or diminished capacity and did not object to their omission from the jury instructions, defendant can only prevail
if he demonstrates plain error, i.e., error "clearly capable of
producing an unjust result." R. 2:10-2. After a thorough review
of the record, we are satisfied that defendant's contentions are
without merit. R. 2:11-3(e)(2). We add the following comments.
"The defense of intoxication is divided between 'voluntary' and 'involuntary' intoxication," State v. Sette, 259 N.J. Super. 156, 170 (App. Div.), certif. denied, 130 N.J. 597 (1992), and may be attributed to drugs or alcohol. State v. Zola, 112 N.J. 384, 424 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed.2d 205 (1989). Involuntary intoxication is intoxication that is either not self-induced or is pathological. Involuntary intoxication is a complete defense if the level of intoxication is so high that the defendant is not aware of the nature and quality of his acts or is not aware that those acts are wrong. Sette, supra, 259 N.J. Super. at 170; N.J.S.A. 2C:2-8d. When the evidence and the legitimate inferences to be drawn therefrom are viewed in the light most favorable to defendant, it is clear that there was no rational basis to support a charge on involuntary intoxication.
The other form of intoxication, "voluntary" or "self-induced," "is not a defense unless it negatives an element of the offense." N.J.S.A. 2C:2-8a; State v. Cameron, 104 N.J. 42, 51 (1986). In order to negate an element of the offense, the intoxication must be of an "extremely high level." Id. at 54;
Sette, supra, 259 N.J. Super. at 170. A jury charge on voluntary
intoxication is required only if there exists a "rational basis
for the conclusion that defendant's 'faculties' were so
'prostrated' that he or she was incapable of forming" the
requisite intent. State v. Mauricio,
117 N.J. 402, 418-19
(1990). The determination of a particular defendant's
intoxication is fact specific. Many cases have analyzed the
defendant's consumption of intoxicants and found it to be
sufficient to warrant a jury charge on intoxication. See, e.g.,
State v. Bey (II),
112 N.J. 123, 143-45 (1988) (holding that
defendant's intoxication warranted a jury charge where defendant
consumed 120 ounces of malt liquor, some straight rum and smoked
a considerable quantity of marijuana during the four-and-one-half
hour period before the crime and had only partial recall about
the details of the offense), cert. denied, ___ U.S. ___,
115 S.
Ct. 1131,
130 L. Ed.2d 1093 (1995); see also State v. Warren,
104 N.J. 571, 573-74, 578 (1986); State v. Frankland,
51 N.J. 221,
222-23 (1968); State v. Polk,
164 N.J. Super. 457, 460-63 (App.
Div. 1977), aff'd o.b.,
78 N.J. 539 (1979).
Other courts have found that a defendant's actions were
sufficiently coherent that a jury charge was not warranted.
See, e.g., Mauricio, supra, 117 N.J. at 419-20 (finding
insufficient evidence to require a jury charge where bouncer
refused defendant admission to nightclub in the belief that he
had already had enough to drink, and witnesses testified that
defendant was "drunk," "intoxicated," and "high," but where,
during the hour preceding the crime, defendant was able to count,
walk, climb stairs, change his clothes, and stand up after being
wrestled down a flight of stairs, and defendant managed to elude
detection by the police who arrived shortly after the shooting);
see also Zola, supra, 112 N.J. at 423-25; Cameron, supra, 104
N.J. at 56-57; State v. Micheliche,
220 N.J. Super. 532, 542-43
(App. Div.), certif. denied,
109 N.J. 40 (1987).
Viewing the evidence and the legitimate inferences to be
drawn therefrom in the light most favorable to defendant, it is
clear that a jury charge on voluntary intoxication was not
required. Although defendant claimed that he used several grams
of cocaine each day during the weeks preceding the instant
crimes, defendant testified that he did not consume any cocaine
on the dates that the crimes were committed. Rather, he merely
consumed two or three Valium tablets that he had stolen from one
of the burglarized vehicles. Defendant's testimony was confirmed
by blood tests taken at the hospital on the afternoon of his
arrest. These tests disclosed that there was no alcohol in
defendant's blood and confirmed that the only drug present in
defendant's bloodstream was Valium. Moreover, defendant's
testimony disclosed that he was able to recall significant events
surrounding the crimes. The only incident that defendant claimed
not to remember was when he was stopped by the bicycle patrol
officers.
The only evidence of possible intoxication was Trooper
Timko's testimony that when defendant was arrested in the marshy
area he was unable to stand or walk without support. According
to Timko, defendant spoke in a loud and boisterous manner and
rambled at times. Although Timko did not smell any alcohol on
defendant's breath, he noticed that defendant's eyes were watery
and bloodshot, and he felt that defendant was under the influence
of an intoxicant. Timko's testimony, however, was contradicted
by Officer McGowan who also observed defendant as he was taken
into custody. According to McGowan, defendant was able to stand
and walk. Additionally, Officer Jones, who had observed and
spoken with defendant earlier that morning in the Trump Plaza,
claimed that defendant did not stagger or sway while carrying
suitcases out of the Trump Plaza parking garage.
Moreover, defendant's behavior indicated that he had not
suffered a prostration of faculties. Defendant was able to
burglarize several vehicles, transfer items from the burglarized
vehicles into the Volvo, steal license plates and place them on
the Volvo, walk while carrying two suitcases through the Trump
Plaza garage, engage in a high speed chase while being pursued by
police officers, run into a marshy area and escape detection for
several hours, slip out of one of his handcuffs and escape from a
police vehicle, and run "full speed" while being pursued by
Officer Bruno.
Most importantly, voluntary intoxication was not a defense
in this case since it did not negate the purposeful or knowing
mental states required for the commission of the crimes with
which defendant was charged. Cameron, supra, 104 N.J. at 51-52.
Dr. Erskine admitted that defendant was able to perform
purposeful activities on the dates of the crimes and that his
knowing capacity was not impaired.
Since the evidence did not provide a rational basis from
which the jury could conclude that defendant's faculties were so
prostrated that he was incapable of forming the requisite intent,
no error was committed by the failure to charge the defense of
voluntary intoxication.
Evidence that the defendant suffered
from a mental disease or defect is admissible
whenever it is relevant to prove that the
defendant did not have a state of mind which
is an element of the offense. In the absence
of such evidence, it may be presumed that the
defendant had no mental disease or defect
which would negate a state of mind which is
an element of the offense.
[Ibid.]
All mental deficiencies and "disorders," where there is evidence
of an underlying mental defect or disease, including conditions
that cause a loss of emotional control, may support a diminished
capacity defense. See State v. Reyes
140 N.J. 344, 364 (1995).
A jury instruction is warranted if the record shows that:
[E]xperts in the psychological field believe
that that kind of mental deficiency can
affect a person's cognitive faculties, and
the record contains evidence that the claimed
deficiency did affect the defendant's
cognitive capacity to form the mental state
necessary for the commission of the crime.
[State v. Galloway,
133 N.J. 631, 647
(1993).]
Here, defendant's expert, Dr. Erskine, opined that defendant
was psychotic, delusional, and in a manic episode due to his
schizoaffective disorder when he broke into the vehicles and when
he was being chased by the police. Erskine, however, stated that
defendant's cognitive capacity was fairly intact and that he
acted in a purposeful and knowing manner at the times in
question. Erskine explained that although defendant was unable
to understand that what he was doing was wrong, he understood the
nature and quality of his acts.
Defendant's other expert, Dr. Weiss, opined that defendant
was suffering from a mental disease state in the form of cocaine
abuse and dependence at the time of the crimes. In addition,
defendant's cocaine problem caused him to have organic
hallucinosis and organic delusional syndrome. Weiss, however,
opined that defendant understood the nature and quality of his
acts on the dates in question and that his mental disease state
merely prevented him from knowing that what he was doing was
wrong.
On the other hand, the State's expert, Dr. Greenfield,
opined that defendant had a chronic schizoaffective disorder
which was in remission at the time of the instant crimes.
Defendant acted in a knowing and purposeful manner, knew the
nature and quality of his acts, and was able to distinguish right
from wrong.
Thus, none of the expert witnesses testified that
defendant's mental disease impaired his ability to form the
requisite mental states of purpose, knowledge, and recklessness,
which are elements of the offenses with which he was charged. A
diminished capacity charge was not required by the mere fact that
the defense experts thought that defendant did not know that what
he was doing was wrong at the time of the offenses, since they
agreed that he knew the nature and quality of his acts. As
explained by Judge Baime:
Obviously, one who, by virtue of a mental
disease or defect, does not know the "nature
and quality" of his act may well be so
incapacitated as to be unable to form the
requisite mental state to be guilty of an
offense. In that event, both the defenses of
diminished capacity and insanity are
available. On the other hand, there are
undoubtedly cases in which the offender has
the capacity to harbor the requisite mental
state, but is sufficiently impaired so as not
to be able to understand that what he is
doing is wrong.
[State v. Humanik,
199 N.J. Super. 283, 299
n.6 (App. Div.), certif. denied,
101 N.J. 266
(1985), cert. denied,
493 U.S. 812,
110 S.
Ct. 57,
107 L. Ed.2d 25 (1989).]
Defendant in the case at bar only attempted to demonstrate that
he did not know right from wrong. His own experts admitted that
defendant knew the nature and quality of his acts and Dr. Erskine
acknowledged that defendant had the capacity to act knowingly and
purposely at the time of the offenses.
A review of the evidence and the legitimate inferences to be
drawn therefrom in the light most favorable to defendant as
required by our Supreme Court, Galloway, supra, 133 N.J. at 648;
State v. Moore,
113 N.J. 239, 287 (1988), reveals that defendant
failed to make the required showing that his alleged mental
disease related to his ability to form the requisite criminal
mental states that are elements of the offenses with which he was
charged. Nor did defendant show that this mental disease is
generally accepted within the scientific community to be capable
of impairing one's ability to possess the states of mind required
for the offenses with which he was charged. Thus, the judge's
failure, sua sponte, to submit the defense of diminished capacity
to the jury was not error.
Defendant contends that the judge erred in denying his motion to dismiss the superseding indictment and reinstate the original indictment. Specifically, defendant argues that the additional charges contained in the superseding indictment violated his right to due process because the prosecutor acted vindictively in obtaining the superseding indictment after defendant failed to enter into a plea bargain.
As noted, supra, the original indictment, No. 93-03-0758-A, which was returned on March 24, 1993, contained twenty-nine counts. During the course of pretrial conference negotiations, the State made two separate plea offers to defendant, neither of
which were accepted. Thereafter, on November 1, 1993, the
prosecutor presented a superseding indictment to the grand jury.
The transcript of the grand jury proceeding held on that date
reveals that no new evidence was presented. Rather, the
assistant prosecutor merely read into the record the testimony of
the sole witness, Detective William Curtis, who testified at the
original grand jury proceeding on March 24, 1993. As a result,
superseding Indictment No. 93-11-2816-A was returned on
November 1, 1993, which contained thirty-nine counts.
The superseding indictment contained eleven new counts that
were not in the original indictmentSee footnote 5__one count of first-degree
robbery (count three),See footnote 6 two counts of second-degree burglary
(counts twenty-two and twenty-six), four counts of third-degree
burglary (counts fourteen, sixteen, eighteen and twenty), two
counts of third-degree unlawful possession of a rifle (counts
thirty-one and thirty-two) and two counts of third-degree
possession of a handgun without a permit (counts thirty-three and
thirty-four). In addition, the superseding indictment replaced
one count of fourth-degree receiving stolen property contained in
the original indictment (count twelve) with one count of fourth-degree theft of moveable property (count fifteen), and replaced
eight counts of third-degree receiving stolen property in the
original indictment (counts thirteen, fourteen, fifteen, sixteen,
eighteen, nineteen, twenty and twenty-one) with eight counts of
third-degree theft of moveable property (counts seventeen,
nineteen, twenty-one, twenty-three, twenty-four, twenty-five,
twenty-seven and twenty-eight).
Defendant moved for an order dismissing the superseding
indictment and for the reinstatement of the original indictment.
In an accompanying certification, defense counsel argued that
defendant's right to due process was violated because the State's
motive in obtaining the superseding indictment was prosecutorial
vindictiveness because defendant refused to accept the State's
plea offers. In support of her argument, defense counsel pointed
to the fact that no new evidence was discovered between the time
of the original indictment and the superseding indictment to
justify the additional charges.
During oral argument on the motion, defense counsel repeated
the allegations contained in her certification. The prosecution
was assigned to Chester Wiech, Jr., yet another assistant
prosecutor, Joseph Constantini, appeared at oral argument on the
motion. Constantini asserted that:
I know from speaking to Mr. Wiech that there
were a number of plea negotiations between
him and prior counsel in this case and that
it was his intention that he had made it
clear to those parties that he was going to
supersede this Indictment . . . the feeling
was why supersede it if it can be worked out?
If it could be worked out, there's no need to
supersede it, but there came a point in time
it became apparent that the Indictment would
have to be superseded . . . nevertheless as
to the one count of the Indictment, which is
a first degree count . . . [w]e'll dismiss
that today, Judge.
Constantini requested that the court dismiss the first-degree
robbery charge because it had been obtained "through some
misunderstanding."
The judge granted the State's motion to dismiss the first-degree robbery charge, but he refused to dismiss the remaining
counts of the superseding indictment. The judge reasoned that
since the evidence presented to the original grand jury was
sufficient to indict defendant on the additional charges
contained in the superseding indictment, it could only be
inferred that these additional charges were omitted through
inadvertence, and, therefore, the prosecutor's motive in
obtaining the superseding indictment was not vindictive.
Defendant relies on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed.2d 656 (1969)See footnote 7 and Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed.2d 628 (1974), in support of his argument. In Pearce, supra, the Supreme Court examined whether a trial court can impose a more severe sentence upon retrial and reconviction after an accused has successfully challenged his first conviction on appeal. The Court held that, although a heavier sentence is not absolutely prohibited, due
process requires that the reasons for imposing such a sentence
upon retrial must affirmatively appear and be based upon
objective information concerning identifiable conduct on the part
of the defendant occurring after the time of the original
sentencing proceeding so that an accused may be free, when taking
an appeal, of any apprehension of subsequent retaliatory or
vindictive sentencing because of his successful appeal. Id. at
726, 89 S. Ct. at 2080-81, 23 L. Ed.
2d at 669-70. The Due
Process Clause of the Fourteenth Amendment "requires that
vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence
he receives after a new trial." Id. at 725, 89 S. Ct. at 2080,
23 L. Ed.
2d at 669.
The defendant in Blackledge, supra, was initially charged
with a misdemeanor. He was convicted in an inferior court in
North Carolina and given a six-month prison sentence. The
defendant exercised his right under North Carolina law to a trial
de novo in Superior Court by filing a notice of appeal. After
the notice of appeal was filed but prior to the trial de novo,
the prosecution obtained an indictment charging defendant with a
felony for the same acts for which he had previously been charged
with a misdemeanor. The net result was an increase of eleven
months in defendant's sentence. Id. at 22-23, 23 n.2, 94 S. Ct.
at 2100, n.2, 40 L. Ed.
2d at 632 n.2. The Supreme Court held
that, when the circumstances "pose a realistic likelihood of
'vindictiveness' . . . due process of law requires a rule
analogous to that of the Pearce case." 417 U.S. at 27, 94 S. Ct.
at 2102, 40 L. Ed.
2d at 634. Thus, even though there was no
evidence of vindictiveness in the record, the Court held that it
was constitutionally impermissible for the prosecution to bring
the more serious charge against defendant after he had exercised
his statutory right to appeal. 417 U.S. at 28-29, 94 S. Ct. at
2103, 40 L. Ed.
2d at 634-35.
In further support of his argument, defendant relies on
United States v. Ruesga-Martinez,
534 F.2d 1367, 1369 (9th Cir.
1976), wherein the court interpreted Pearce and Blackledge as
establishing that "when the prosecution . . . reindict[s] the
accused because the accused has exercised some procedural right,
the prosecution bears a heavy burden of proving that any increase
in the severity of the alleged charges was not motivated by a
vindictive motive." Ibid.
Defendant, however, has ignored the Supreme Court's
subsequent decision in Bordenkircher v. Hayes,
434 U.S. 357,
98 S. Ct. 663,
54 L. Ed.2d 604 (1978), in which the Court
distinguished the pre-trial plea bargaining process from the
situations involved in Pearce and Blackledge. The question
addressed in Bordenkircher was "whether the Due Process Clause of
the Fourteenth Amendment is violated when a state prosecutor
carries out a threat made during plea negotiations to reindict
the accused on more serious charges if he does not plead guilty
to the offense with which he was originally charged." 434 U.S.
at 358, 98 S. Ct. at 665, 54 L. Ed.
2d at 607. The prosecutor in
Bordenkircher possessed evidence justifying the more serious
charge at the time of the original indictment. In answering this
question in the negative, the Court distinguished Pearce and
Blackledge by noting that
[I]n those cases the Court was dealing with
the State's unilateral imposition of a
penalty upon a defendant who had chosen to
exercise a legal right to attack his original
conviction__a situation "very different from
the give-and-take negotiation common in plea
bargaining between the prosecution and
defense, which possess relatively equal
bargaining power."
[Id. at 362, 98 S. Ct. at 667, 54 L. Ed.
2d at
610 (quoting Parker v. North Carolina,
397 U.S. 790,
90 S. Ct. 1458,
25 L. Ed.2d 785
(****)).]
The Court noted that "in the 'give-and-take' of plea bargaining,
there is no such element of punishment or retaliation so long as
the accused is free to accept or reject the prosecution's offer."
Bordenkircher, supra, 434 U.S. at 363, 98 S. Ct. at 668, 54 L.
Ed.
2d at 610-11. The Court further observed:
In our system, so long as the prosecutor has
probable cause to believe that the accused
committed an offense defined by statute, the
decision whether or not to prosecute, and
what charge to file or bring before a grand
jury, generally rests entirely in his
discretion. Within the limits set by the
legislature's constitutionally valid
definition of chargeable offenses, "the
conscious exercise of some selectivity in
enforcement is not in itself a federal
constitutional violation" so long as "the
selection was [not] deliberately based upon
an unjustifiable standard such as race,
religion, or other arbitrary classification."
[Id. at 364, 98 S. Ct. at 668-69, 54 L. Ed. 2d at 611 (quoting Oyler v. Boles, 368 U.S. 448,
456,
82 S. Ct. 501, 506,
7 L. Ed.2d 446
(1962) (footnote omitted).]
The Court concluded by stating:
We hold only that the course of conduct
engaged in by the prosecutor in this case,
which no more than openly presented the
defendant with the unpleasant alternatives of
forgoing trial or facing charges on which he
was plainly subject to prosecution, did not
violate the Due Process Clause of the
Fourteenth Amendment.
[Bordenkircher, supra, 434 U.S. at 365, 98 S.
Ct. at 670, 54 L. Ed.
2d at 612.]
Although the Court declined to apply a presumption of
vindictiveness, it did not rule out the possibility that a
defendant could establish a due process violation by proof of
actual vindictiveness. Ibid.
More recently, in United States v. Goodwin,
457 U.S. 368,
369-71,
94 S. Ct. 2485, 2494,
73 L. Ed.2d 74, 78-79, the Supreme
Court held that the Pearce presumption of vindictiveness is
unwarranted where a prosecutor adds a felony charge before trial
to a defendant's misdemeanor and petty offense charges after the
defendant demands a jury trial on the misdemeanor and petty
offense charges. In so ruling, the Court noted that Pearce and
Blackledge, in which the presumption of vindictiveness had been
applied, involved the defendant's exercise of a procedural right
that caused a complete retrial after he had been tried and
convicted. "The decisions in [these] cases reflect a recognition
by the Court of the institutional bias inherent in the judicial
system against the retrial of issues that have already been
decided." Goodwin, supra, 457 U.S. at 374, 94 S. Ct. at 2490, 73
L. Ed.
2d at 81. This bias might subconsciously motivate a
vindictive prosecutorial or judicial response to a defendant's
exercise of his right to obtain a retrial of a decided question.
Id. at 374, 376-77, 94 S. Ct. at 2490-91, 73 L. Ed.
2d at 81-83.
The institutional bias against the retrial of a decided question
was not applicable to the situation in Goodwin. 457 U.S. at 383,
94 S. Ct. at 2494, 73 L. Ed.
2d at 87.
The Court explained that there was "good reason to be
cautious before adopting an inflexible presumption of
prosecutorial vindictiveness in a pretrial setting." Id. at 381,
94 S. Ct. at 2492, 73 L. Ed.
2d at 85. The Court explained:
In the course of preparing a case for trial,
the prosecutor may uncover additional
information that suggests a basis for further
prosecution or he simply may come to realize
that information possessed by the State has a
broader significance. At this stage of the
proceedings, the prosecutor's assessment of
the proper extent of prosecution may not have
crystallized. In contrast, once a trial
begins__and certainly by the time a
conviction has been obtained__it is much more
likely that the State has discovered and
assessed all of the information against an
accused and has made a determination, on the
basis of that information, of the extent to
which he should be prosecuted. Thus, a
change in the charging decision made after an
initial trial is completed is much more
likely to be improperly motivated than is a
pretrial decision.
[Id. at 381, 94 S. Ct. at 2492-93, 73 L.
Ed.
2d at 85.]
Thus, the Court held that "the timing of the prosecutor's
action in this case suggests that a presumption of vindictiveness
is not warranted." Id. at 381, 94 S. Ct. at 2493, 73 L. Ed.
2d at
86. The Court observed:
A prosecutor should remain free before trial
to exercise the broad discretion entrusted to
him to determine the extent of the societal
interest in prosecution. An initial decision
should not freeze future conduct. As we made
clear in Bordenkircher, the initial charges
filed by a prosecutor may not reflect the
extent to which an individual is legitimately
subject to prosecution.
[Id. at 382, 94 S. Ct. at 2493, 73 L. Ed.
2d
at 86 (footnotes omitted).]
Although the Court declined to apply a presumption of
vindictiveness, it did not foreclose the possibility that a
defendant might objectively prove actual vindictiveness. Id. at
384, 94 S. Ct. at 2494, 73 L. Ed.
2d at 87. Where the presumption
does not apply, as here, the defendant must affirmatively prove
actual vindictiveness. See Wasman, supra, 468 U.S. at 569, 104
S. Ct. at 3223, 82 L. Ed.
2d at 433; see also State v. Long,
119 N.J. 439, 465-67 (1990) (finding that defendant submitted no
evidence of actual vindictiveness after refusing to apply a
presumption of prosecutorial vindictiveness where the prosecutor
submitted a superseding indictment that added four new charges
and where those new charges did not significantly increase the
potential punishment).
As noted, "the mere fact that a defendant refuses to plead
guilty and forces the government to prove its case is
insufficient to warrant a presumption that subsequent changes in
the charging decision are unjustified." Goodwin, supra, 457 U.S.
at 382-83, 94 S. Ct. at 2493, 73 L. Ed.
2d at 86. Defendant,
therefore, must affirmatively prove actual vindictiveness in
order to prevail on appeal. Defendant has failed to do so.
The prosecutor's threat in Bordenkircher, supra, that he
would reindict the defendant on more serious charges if he did
not plead guilty was held not to establish actual vindictiveness.
The prosecutor's actions in the case at bar did not constitute a
threat since he merely told defense counsel that he intended to
obtain a superseding indictment if plea negotiations proved
fruitless. Thus, there is even less reason to think that the
prosecutor's actions amounted to actual vindictiveness.
Moreover, since the evidence supporting the additional charges in
the superseding indictment was presented to the original grand
jury, it can be inferred that the additional charges were omitted
from the original indictment through inadvertence. Such
inadvertence does not constitute actual vindictiveness. See
State v. Buckram,
173 N.J. Super. 87, 89-90 (App. Div. 1980).
Additionally, the only significant charge that was added in
the superseding indictment, the first-degree robbery charge, was
dismissed prior to trial on the prosecutor's motion, presumably
to remove any possible hint of prosecutorial vindictiveness. We
find that: (1) no presumption of vindictiveness was warranted;
(2) that there was no showing of actual vindictiveness; and (3)
that, even if (1) or (2) were not the case, that the actions of
the prosecutor in dismissing the only significant additional
charge cured any error.
Defendant contends in Point III of his brief, as well as in the sole issue of his pro se supplemental brief, that the judge erred in denying his motion for a new trial because the prosecutor made several improper comments during summation that denied him the right to a fair trial.
Although defense counsel did not object during trial to any of the prosecutor's comments to which defendant now objects on appeal, she did move for a new trial on the ground that the prosecutor made several improper remarks during summation. During oral argument on the motion, defense counsel asserted that the comments amounted to prosecutorial misconduct. The judge disagreed and denied the motion, finding that the prosecutor had not committed any impropriety during summation.
During summation, a prosecutor is generally limited to commenting on the evidence and to "drawing any reasonable inferences supported by the proofs." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed.2d 205 (1989). A prosecutor may, however, make "a vigorous and forceful presentation of the State's case." Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed.2d 1160 (1958)). Prosecutorial misconduct forms the basis for reversal only when the prosecutor's conduct was so egregious that it "deprived defendant of a fair trial." Zola, supra, 112 N.J. at 426 (citing State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947,
113 S. Ct. 2433,
124 L. Ed.2d 653 (1993)). In order to warrant a
reversal, a prosecutor's statements must "substantially prejudice
the defendant's fundamental right to have a jury fairly evaluate
the merits of his defense." State v. Koedatich,
112 N.J. 225,
338 (1988), cert. denied,
488 U.S. 1017,
109 S. Ct. 813,
102 L.
Ed.2d 803 (1989) (quoting Bucanis, supra, 26 N.J. at 56). A
failure to make a timely objection to a prosecutor's remarks,
shows that "in the atmosphere of the trial the defense did not
believe that the prosecutor's remarks were prejudicial." State
v. Wilson,
57 N.J. 39, 51 (1970). We recognize the general
reluctance of counsel to object during a summation, yet recognize
that an objection immediately following summation does permit
curative action by the judge. Silence on the part of counsel and
a subsequent motion for a new trial cannot be condoned.
We have analyzed the ten specific comments in the
prosecutor's summation that defendant contends necessitate
reversal. In our review, we are fully aware that the judge
instructed the jury immediately prior to the summations and again
during his charge that if either attorney said anything about the
evidence during summation that differed from the jurors'
recollection, the jurors were bound by their own recollection
since it was their exclusive function to decide the facts in the
case. The judge also instructed the jury that they were to
decide the case based on the evidence without bias, prejudice, or
sympathy. "There can be no assumption that the jury did not
faithfully follow this admonition." State v. Darrian,
255 N.J.
Super. 435, 454 (App. Div.), certif. denied,
130 N.J. 13 (1992).
We need not review each of the ten alleged comments. We are
satisfied that most of defendant's contentions are without merit.
R. 2:11-3(e)(2). We add the following selected comments.
Some of the alleged improper remarks were clearly remarks on
the credibility of defendant's testimony and are therefore
unobjectionable. See Darrian, supra, 255 N.J. Super. at 458
(prosecutor's remarks during summation that defendant had lied
during his testimony, as well as in his statement to the police,
were not improper since they merely constituted comments upon the
evidence and the credibility of defendant's testimony); State v.
Morris,
242 N.J. Super. 532, 543 (App. Div.), certif. denied,
122 N.J. 408 (1990) (prosecutor did not overstep bounds of propriety
in summation when she challenged defendant's claim that he
intended to return to custody following escape by commenting that
it was hard to believe that defendant escaped only to go to
another prison; prosecutor's remark did nothing more than discuss
facts in evidence); State v. Robinson,
157 N.J. Super. 118, 120
(App. Div.), certif. denied,
77 N.J. 484 (1978) (prosecutor's
comments during summation that defendant's testimony appeared
incredible, unbelievable and fabricated were not improper since
they merely constituted comments on the credibility of
defendant's testimony).
One of these criticisms is illustrative. Defendant contends
that the following comment was improper:
But [defendant] tells you he couldn't
distinguish fantasy from reality at the time;
but yet, he's able to come here nearly two
years later and tell you all about the
hallucinations and exactly when they started
and when they stopped.
Does that give some cause for concern?
I submit, it should give you a great deal of
cause for concern, because in doing that, in
doing that [sic], I submit, it sheds light on
the fact that this whole thing was concocted.
[(emphasis added).]
Defendant contends that the prosecutor's comment to the
effect that the defense of insanity was "concocted" denigrated
defendant