PER CURIAM.
These back-to-back appeals, which we consolidate for purposes of this opinion, arise from defendants' convictions (at a joint trial) for burglary and aggravated assault. We affirm.
The following facts are derived from the trial record. On February 2, 2008, at approximately 1:20 p.m., Stanley Cagle
As Mr. and Mrs. Cagle proceeded inside, Lewis entered their yard. Lewis then walked up to a window and had a conversation with Mrs. Cagle, who attempted to calm the situation. Soon thereafter, the Cagles heard their front door being kicked in. Eventually, the door came off its hinges and Lewis entered the home. Another man, later identified as co-defendant Steven Gilmore (Gilmore), came into the home as well.
At that point, Mr. Cagle claims he pushed Gilmore, who fell over the couch. He then observed Gilmore knock a phone out of Mrs. Cagle's hand. Thereafter, a fight ensued between Mr. Cagle and Lewis. Gilmore joined the fight and began punching Mr. Cagle in the face, causing a black eye.
Mr. Cagle claims he forced Lewis outside the apartment. He then began to swing a knife, which he had drawn from his utility belt, at Lewis, stabbing him several times. By that point, Gilmore had left.
Mr. Cagle later identified Lewis at the hospital as the man he stabbed. After he returned home, he identified Gilmore, whom he observed outside his home, as the second assailant.
Lewis claims Mr. Cagle started the fight by insulting his mother. After Mr. Cagle's words, Lewis said he followed Mr. Cagle to the gate outside of the Cagle home. According to Lewis, the two were forced through the gate by the other men at the tailgate party. Lewis, enraged by Mr. Cagle's insults, attempted to punch him, but Mr. Cagle blocked the punch, then stabbed him multiple times with a sheetrock knife.
On February 4, 2008, Gilmore gave a sworn statement to the police. He claimed he went into the building where the Cagles lived to visit an ex-girlfriend, whom he knew only as "Mook." He stated that when he entered the building, he observed a "Caucasian guy and a black guy" fighting, but denied any involvement or knowing the people involved.
In May 2008, a Union County grand jury indicted Lewis for second-degree burglary, contrary to
Following a six-day trial in July 2009, a jury found Lewis and Gilmore guilty on counts one and three, and acquitted Lewis on count two. On September 4, 2009, the trial judge granted the State's application for an extended term for Lewis and merged count three with count one. He then sentenced Lewis to a thirteen-year state prison term, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA),
On appeal Lewis raises the following arguments:
With Lewis's first point, he contends that the trial court erred by failing to properly charge the jury regarding its option to convict him as an accomplice to third-degree burglary, rather than second-degree burglary. We disagree.
Lewis did not object to the jury charge. Thus, we apply the plain error standard.
We find no plain error in the trial judge's jury instruction. He properly instructed the jury that "in order to convict the defendant as an accompli[ce] to the specific crimes charged, you must find that the defendant had the purpose to participate in that particular crime." He also gave the jury a detailed description of the elements and relevant states of mind for third-degree burglary and second-degree burglary.
Lewis claims in his second point that the prosecutor's closing argument constituted prosecutorial misconduct, thereby depriving him of his right to a fair trial. This claim lacks merit.
A prosecutor is prohibited from using "improper methods calculated just to produce a conviction."
Lewis's first argument of prosecutorial misconduct is that the prosecutor mischaracterized defense counsel's closing argument regarding the identification of Lewis. Although, the prosecutor appears to have misinterpreted defense counsel's argument, his response in summation did not have a palpable impact on the trial. The prosecutor stated:
What defense counsel actually stated in his summation is that there was nothing in Mrs. Cagle's 911 phone call to indicate Lewis was stabbed and bleeding inside the apartment. Specifically, defense counsel said: "And no testimony, no — nothing in the 911 call about anyone
In response to defense counsel's objection to the prosecutor's statement, the trial judge indicated he would instruct the jury that "they are the judges of the facts and if their understanding as to what the lawyers says is different, they are to be controlled by ... their own understanding of the facts[.]"
We find no malicious intent behind the prosecutor's misstatement and conclude that the trial judge's jury instruction was sufficient to cure any effect the statement may have had on the jury.
Lewis alleges further prosecutorial misconduct regarding the prosecutor's assertion in summation that Lewis admitted to being on the Cagles' porch. Lewis did not object to this statement at trial.
Generally, improper remarks will not be deemed prejudicial if they are not objected to at trial.
A review of the record indicates that Lewis did not admit to being on the Cagles' porch. As such, the prosecutor's statement to the contrary was indeed inaccurate. However, as with the other comments, the trial judge's instruction to the jury that they not rely on the factual assertions made by counsel adequately addressed the prosecutor's mistaken assertion.
We find Lewis's final two points to be without sufficient merit to warrant extended discussion.
As to Lewis's third point, Lewis failed to move for a new trial and therefore is barred from arguing on appeal that his conviction was against the weight of the evidence.
Finally, we do not agree with Lewis's final point that he received an excessive sentence. At sentencing, the trial judge considered the aggravating factors and the ramifications of NERA. He thoroughly reviewed Lewis's record, which contains five indictable convictions, multiple disorderly persons offenses, four municipal court convictions, and two juvenile adjudications. Lewis's extensive record and the nature of the crime supported the findings of aggravating factors three, six, and nine,
On appeal Gilmore raises the following arguments:
With his first point, Gilmore argues that he was prejudiced by the trial court trying Lewis and him together rather than holding separate trials. We disagree. Because Gilmore did not object to the joint trial in the trial court, we apply the plain error standard.
Pursuant to
Trying co-defendants jointly is preferable due to the interests of judicial economy and because it avoids the possibility of inconsistent verdicts and enables "`more accurate assessment of relative culpability[.]'"
In this matter, Lewis's defenses were not antagonistic or mutually exclusive to Gilmore's and Gilmore's defenses were not antagonistic or mutually exclusive to Lewis's. Furthermore, neither defendant implicated the other. Thus, holding separate trials was not mandatory.
We do not agree with Gilmore's contention that the bias count (count two) against Lewis prejudiced the jury against him. The trial judge specifically instructed the jury that "Count [two] only applies to Mr. Lewis[.]" Moreover, the jury acquitted Lewis of count two. Likewise, we find no merit in Gilmore's argument that Lewis would have been able to provide exculpatory testimony if Gilmore had a separate trial. Lewis testified at the joint trial that he did not see Gilmore on the day in question. There is nothing more beneficial that Lewis potentially could have said at a separate trial to help Gilmore's case. Finally, we find Gilmore's guilt by association argument unconvincing, as our Supreme Court has determined such arguments insufficient to justify the need for a separate trial.
Gilmore's final two points are without sufficient merit to warrant extended discussion.
As to Gilmore's second point, like Lewis, Gilmore failed to move for a new trial and is barred from arguing on appeal that his conviction was against the weight of the evidence.
Finally, We do not agree with Gilmore's contention that he received an excessive sentence. At Gilmore's sentencing, the trial judge found that Lewis was the leader in this case and Gilmore was the "follower." He carefully reviewed Gilmore's record, which contains seven municipal court convictions, two indictable convictions, and a probation term that he was serving when he committed the burglary. Based on Gilmore's record and the nature of the offense, the trial judge appropriately found aggravating factors three,
Affirmed.