State v. Morais

819 A.2d 424, 359 N.J. Super. 123
CourtNew Jersey Superior Court Appellate Division
DecidedApril 1, 2003
StatusPublished
Cited by37 cases

This text of 819 A.2d 424 (State v. Morais) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Morais, 819 A.2d 424, 359 N.J. Super. 123 (N.J. Ct. App. 2003).

Opinion

819 A.2d 424 (2003)
359 N.J. Super. 123

STATE of New Jersey, Plaintiff-Respondent,
v.
Augostinho MORAIS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted February 24, 2003.
Decided April 1, 2003.

*425 Fusco & Macaluso, Passaic, for appellant (Michael J. Montanari, of counsel and on the brief).

Peter C. Harvey, Acting Attorney General, for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

Before Judges BRAITHWAITE, PARKER and BILDER.

The opinion of the court was delivered by PARKER, J.A.D.

Defendant appeals from his conviction by a jury of fourth degree false swearing, N.J.S.A. 2C:28-2 (Count 10). He was acquitted *426 on the remaining counts alleging official misconduct, terroristic threats, filing a false police report and aggravated assault. He was sentenced to two years probation and fined $1,500 in addition to the mandatory penalties and assessments. We affirm.

Defendant was a Newark Police Officer assigned to the Narcotics Interdiction To Remove Open Air Narcotics (NITRO) unit. On September 28, 1999, he and his partner/co-defendant came upon Tyree Collins, a/k/a Raqui Gilbert, riding a bicycle on his way to a Kennedy's Fried Chicken to buy cigarettes at 2:00 a.m. The co-defendants were in plain clothes, driving an unmarked white Jeep when they pulled alongside Collins and called him to come over. Thinking they were "stick-up kids," Collins rode away and kept riding on alternate sides of the streets until he reached the parking garage of Beth Israel Hospital. By that time, he realized the men were police officers but was afraid to stop because he had been beaten by police officers in the past. Collins jumped over a wall where he was a found a few minutes later by defendant. Collins pleaded with defendant not to hit him, but defendant hit him above the eye with his flash light.

Collins was taken into custody, and the officers called for backup to search the area. Collins had no drugs on his person, nor were there any drugs found in the area where he was arrested. The officers took him to the precinct station, and about forty-five minutes later, another officer came into the station holding a bag containing eight to ten bags of marijuana. Collins denied that the marijuana belonged to him but he was, nevertheless, charged with possession of a controlled dangerous substance (CDS) and possession with the intent to distribute in a school zone.

Collins remained in custody for two days. After his release, he reported the incident to the Internal Affairs Bureau (IAB). An investigation was undertaken and Lt. Ronald Kinder of the IAB retrieved an audiotape from the precinct with recorded conversations of defendant, co-defendant and Collins between 2:18 a.m. and 2:40 a.m. that night. Defendant and his partner were ultimately charged in a thirteen count indictment.

In this appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO SPEAKING [SIC] DIRECTLY TO A JUROR DURING HIS SUMMATION AND ASKED JURORS TO CALL ON PERSONAL EXPERIENCE NOT FACTS TO REACH A VERDICT.

POINT II

DEFENDANT MORAIS WAS DENIED HIS RIGHT TO A FAIR TRIAL BECAUSE THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO USE THE TERM "BLUE WALL."

POINT III

THE TRIAL COURT ERRED IN MISLEADING THE JURY IN ITS PROPER ROLE.

POINT IV

THE TRIAL COURT ERRED IN NOT PERMITTING THE FIELD OPERATIONS MEMORANDUM INTO EVIDENCE.

POINT V

THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON THE LAW OF POSSESSION WITH INTENT TO DISTRIBUTE.

I

In his first three points, defendant contends that reversible error occurred during *427 the prosecutor's closing argument. He argues that (1) the prosecutor improperly spoke directly to a juror; (2) the prosecutor improperly referred to the "blue wall" when describing the testimony of defendant's fellow police officers; and (3) the prosecutor improperly called upon the jury to insure the integrity and honesty of all police officers by convicting defendant.

Counsel for co-defendant gave the first closing argument and told the jury: "Make no bones about it, ladies and gentlemen, the war that is being waged out there is a war against drugs, a war against crime, but a war against drugs. That's why this NITRO unit was created." He told the jury that the City of Newark wanted cops to be aggressive and to attack the "cancer" of drug use and that the City invested a lot of money and manpower to make sure that people like Collins did not come into the City to buy or sell drugs. Counsel also argued that the State wanted the jury to judge whether the officers did anything wrong even though the jurors did not have any law enforcement background and were not provided with any rules or regulations by which to judge defendants' conduct. He maintained that common sense was not enough in this case. Holding a badge holder in one hand and the eight bags of marijuana in the other, counsel asked the jurors to choose between the two:

This badge holder once proudly held the badges of two officers who would have done anything to protect the citizens of this city.
And in this hand, I give you the eight bags of weed and a dollar bill to show you what Tyree Collins is.... You want this or you want to do justice.

Defendant's counsel summed up next: "When a policeman takes an oath, he swears to God that he's going to protect and serve. Protect and serve. And you know what, it's not easy being a cop." According to counsel, "[T]his whole case has turned justice on its end."

The prosecutor summed up last. He commented that the case was about the "police being honest. It's about the police being accountable to the law." The prosecutor noted that "the defense would like you to see this case ... as Tyree Collins being on trial." But consider the audiotape, he told the jury. "The tape is the one unimpeachable witness that we have in this case." The prosecutor noted that these specially trained narcotics cops should have searched Collins immediately after handcuffing and arresting him: "Isn't that logical? Isn't that what you would expect a cop to do? You know, many of you know police officers. I believe when you were questioned during the jury voir dire, someone, you're married to a cop, I even think."

Defendants immediately objected to the prosecutor's personal reference to one of the jurors and moved for a mistrial. The court found that, in context, the prosecutor's remarks were proper and denied the application for a mistrial.

Later in his summation, the prosecutor disputed the credibility of Officers Dupont, Grosso and Sheppard when they claimed that they did not know what went on that night:

Do you think for one second that these guys didn't talk when they were down there that night looking for these drugs? They all said, no, we didn't. No, we don't know nothing [sic].
See, this is all part of the blue wall here, too. You have to keep that in mind.... (Emphasis added).

Defendants' objection to the "blue wall" reference was overruled and the prosecutor continued:

This is part [of] the blue wall. I suggest to you these guys are being less than *428 forthcoming, Dupont, Grosso, and Sheppard, all three of them. And they didn't know exactly what went on in there that night.

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819 A.2d 424, 359 N.J. Super. 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morais-njsuperctappdiv-2003.