NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0840-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHABAR TAYLOR,
Defendant-Appellant.
Submitted March 7, 2018 – Decided June 12, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
15-11-1379.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen P. Hunter, Assistant
Deputy Public Defender, of counsel and on the
brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Brian D. Gillet,
Deputy First Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Tried by a jury, defendant Shabar Taylor was convicted of
second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b), and acquitted of second-degree possession of a weapon
for unlawful purposes, N.J.S.A. 2C:39-4(a). The trial judge
sentenced defendant on September 6, 2016, to five years
imprisonment subject to forty-two months of parole ineligibility.
See N.J.S.A. 2C:43-6(c). We now affirm.
We glean the following from the trial record. On July 23,
2015, A.N. surreptitiously let defendant, who was then her
boyfriend, into her home. At the time, A.N. was fifteen years
old. As the two spoke in the kitchen, defendant pulled gloves and
a face mask out of his sweatshirt pocket while saying "this is
real. This is what I'm about." A.N. heard her younger cousin on
the stairs, sent her back upstairs, and turned around. She saw
defendant had placed a gun on the table. He took something out
of the handle, and when he picked it up, the gun went off.
Defendant grabbed it and fled.
A.N.'s mother awakened and ran downstairs. She smelled
gunpowder in the kitchen, and took both girls back into her
bedroom. The Edison Police Department responded to her 911 call
within five minutes.
Officer Joseph Palko was first to arrive at the scene. He
found a bullet groove on the kitchen table, a bullet hole in the
wall, and a .40 caliber bullet casing on the floor. A chair that
had been knocked over and the back had broken off. At trial, the
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parties stipulated that defendant did not have a permit to purchase
or carry a firearm. A.N. identified defendant as the person who
shot the gun.
The defense argued to the jury that the matter was
inadequately investigated. This included the State's failure to
take into evidence for fingerprint analysis an empty bottle that
A.N.'s mother told the officers at the scene had been brought
there by the person with the gun. The police did not obtain the
bullet, which would have matched the empty cartridge.
A second officer who was at the scene testified on behalf of
the State, as did an evidence technician. The lead investigative
officer, a Sergeant Abrams,1 did not testify. Although defense
counsel referred to him during questioning, the court barred any
mention of his absence during closing statements. The court
sustained the State's objection to the testimony on the basis of
State v. Clawans, 38 N.J. 162 (1962). The judge found defendant
had not given the prosecutor any prior notice of his intention to
argue that the State's failure to call Abrams was because his
testimony would have been unfavorable. Defense counsel argued
that his intent was only to argue that the State failed to meet
its burden by not calling that particular officer. The judge
1
His full name is not in the record.
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interpreted Clawans to mean that "there just can't be an inference
that he would have said something advantageous." Accordingly, she
prevented defense counsel from mentioning the point further.
In summation, defendant also argued that A.N. was motivated
by her desire for revenge because defendant had found another
girlfriend. Trial counsel also attacked A.N.'s mother's
truthfulness, claiming her testimony was false regarding an
apologetic text from defendant, about which she never told police.
During closing, the prosecutor mistakenly told the jury that
A.N.'s mother was unsure if she had told Abrams about the empty
bottle; in fact, she testified she had told them. There was some
question as to whether defendant used his own cell phone when he
first called A.N. about visiting her that night, as opposed to a
call he made to her later, after the incident occurred. In
response to the argument that the discrepancy corroborated A.N.'s
untrustworthiness, the prosecutor said that it was possible that
defendant simply charged his phone on a car charger. The
prosecutor also said that whether defendant hid the gun in A.N.'s
home or brought it there, was inconsequential because the point
was that he left with it. Additionally, the prosecutor incorrectly
said A.N. testified that defendant reached out for the gun and it
went off, "because when he popped the clip he forgot to take the
shell out of the chamber."
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Defense counsel asked the judge to instruct the jury that
they were not to speculate, but the request was denied. The court
responded that the prosecutor's comments merely urged the jury to
draw reasonable inferences from the evidence. In its closing
charge, the trial court did instruct the jury that the attorneys'
comments were not evidence, and that the jury's recollection of
the evidence controlled.
Now on appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT IMPROPERLY PRECLUDED DEFENSE
COUNSEL UNDER STATE V. CLAWANS, 38 N.J. 162
(1962), FROM ARGUING REASONABLE DOUBT BASED
ON A LACK OF EVIDENCE IN SUMMATION. THIS
DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO
PRESENT A DEFENSE. U.S. Const. Amend. VI,
XIV; N.J. Const. Art. I, ¶¶ 1, 10.
POINT II
THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT
A FAIR TRIAL. U.S. Const. Amend. XIV; N.J.
Const. Art. I, ¶ 1.
I.
In State v. Hill, 199 N.J. 545 (2009), the Court addressed a
similar claim to the one made here——that the State had failed to
call an essential witness and, as a result, defense counsel should
be entitled to argue to the jury in closing that it could draw an
adverse inference from the witnesses' absence. Id. at 560-61.
The Court said a trial judge must make a "dispassionate assessment
of the circumstances to determine whether reference to an inference
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in summation is warranted and, further, whether a jury instruction
should be injected into the mix of the parties' arguments,
informing the jurors that they may draw such an inference from a
party's failure to call a witness." Id. at 561 (citing Clawans,
38 N.J. at 172).
In order to draw the inference, however, more must be
demonstrated than the mere circumstance that a party fails to
"call a witness who has knowledge of relevant facts." Ibid. The
determination requires "caution," and the trial court must decide
whether the absent witness is only within the power of one party,
whether they are available to that party both practically and
physically, that the "testimony of the uncalled witness will
elucidate relevant and critical facts in issue," and that the
testimony is "superior to that already utilized in respect to the
fact to be proven." Ibid.
In this case, defendant wanted to argue that the lead
detective was not called because the State did not wish to draw
attention to its failure to investigate or to some other procedural
misconduct. Additionally, defendant argues that even if he was
not entitled to a Clawans charge, his constitutional right to
present a defense was denied because he was prohibited from making
the point during summation.
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Defendant was not entitled to a Clawans charge. He did not
meet the conditions enunciated in Hill. The lead detective was
as available to him as he was to the prosecutor. His testimony
would have been cumulative. Defendant had no actual circumstance
he could proffer that was only available to Abrams. Additionally,
no notice was given to the State that defendant intended to make
the argument.
However, defendant reiterates on appeal that he did not
request a Clawans charge, but merely wanted to argue to the jury
that the detective may have testified favorably for the defense.
Defendant's contention that he merely wanted to refer to the
absence, and hypothesize from it that Abrams would have testified
favorably to him, is equivalent to asking the jury to draw an
unfavorable inference. By doing so, defendant would have asked
the jury to speculate based solely on the detective's absence as
opposed to drawing reasonable inferences from the evidence.
Accordingly, we find the trial judge did not err.
II.
To warrant reversal of a conviction, a prosecutor's
statements must constitute a clear infraction and substantially
prejudice the defendant's fundamental right to have the jury fairly
evaluate the merits of his or her defense. State v. Timmendequas,
161 N.J. 515, 575 (1999). Furthermore, a prosecutor's remarks may
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be harmless if they are only a response to remarks made by defense
counsel. State v. Wakefield, 190 N.J. 397, 451, 457 (2007)
(citations omitted).
There is no question that the prosecutor misspoke about the
bottle. The point, however, is inconsequential in light of the
testimony of both A.N. and her mother. Furthermore, the comment
was brief.
The prosecutor's arguments regarding the gun were only
intended to drive home the point that no matter where the gun was
located before defendant left, A.N. was not the one who left the
house with a gun. This was fair comment. A prosecutor is entitled
in summation to encourage the jury to draw reasonable inferences
from the evidence. See State v. R.B., 183 N.J. 308, 330 (2005).
Additionally, defendant objects to the prosecutor having
stated that perhaps defendant called A.N. from his own cell phone
later on because he charged his phone. Although that certainly
was speculation, it is not so meaningful as to have had an impact
on the jury's decision. See State v. Morton, 155 N.J. 383, 457
(1998).
The objected-to statements do not add up to the type of
prosecutorial misconduct which might have affected jury
deliberations and their final verdict. No prejudicial error was
committed by the State in summation.
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Affirmed.
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