On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-12-2233.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Sapp-Peterson and Sabatino.
This criminal appeal returns for consideration of defendant's arguments that were not previously resolved in our November 18, 2003 opinion directing, on other grounds, judgment of acquittal on his conviction of possession of a weapon for an unlawful purpose under N.J.S.A. 2C:39-4a, and the Supreme Court's ensuing reversal on that discrete issue. See State v. Banko, 364 N.J. Super. 210 (App. Div. 2003) (declaring proofs insufficient to establish defendant's unlawful purpose in possessing weapons in light of his acquittal by the jury on all other substantive counts of the indictment), rev'd, 182 N.J. 44 (2004)(reinstating defendant's conviction, in spite of apparent inconsistent verdicts, but preserving defendant's other points for future review).
We shall not repeat the underlying facts at length, as they are comprehensively described in our prior opinion, see id., 364 N.J. Super. at 214-19, as well as in the opinion of the Supreme Court, see id., 182 N.J. at 45-53. The following brief summary will suffice.
On April 30, 1999, defendant Michael Banko met the alleged victim, Carmen Miles, at a Manhattan bar. After socializing further at a dance club, defendant arranged through his friend to have a car service drive Miles and him to his New Jersey apartment. During the course of the evening, defendant made romantic overtures toward Miles, although no sexual touching evidently occurred. While in his apartment, defendant showed Miles his unloaded BB gun. Miles ran out of the apartment shortly thereafter and sought police assistance. Defendant denies ever pointing the gun at Miles, and claims that Miles herself brought up the subject of guns and even held the BB gun in her own hands.
Following a ten-day trial in May 2002, defendant was acquitted of the most serious charges (first-degree attempted aggravated sexual assault and first-degree kidnapping) and was also acquitted of fourth-degree aggravated assault by pointing a firearm. However, the jury convicted defendant of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. That conviction, reinstated by the Supreme Court, is now before us, following a remand to the trial judge who declined in an opinion dated April 4, 2005 to set aside the verdict on any of the additional grounds that were not decided in his first post-verdict opinion. Defendant was sentenced to seven years imprisonment, including three years without parole pursuant to the Graves Act. On October 18, 2005, the Supreme Court granted defendant's motion for bail pending appeal.
On the present appeal of his conviction, defendant raises the following issues:
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO BE "PRESENT" AT ALL PHASES OF HIS TRIAL BY THE TRIAL COURT'S DENIAL OF HIS RIGHT TO BE PHYSICALLY PRESENT AT SIDEBAR VOIR DIRES OF JURORS, PREJUDICING DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY.
MULTIPLE ACTS OF PROSECUTORIAL MISCONDUCT, UNCORRECTED BY THE TRIAL JUDGE, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL VERDICT [PARTIALLY RAISED BELOW].
a. The prosecutor in summation accused Defendant of "tailoring" his testimony based on what he heard at trial; suggested Defendant had "orchestrated" his testimony with his trial attorney; vouched for the credibility of the Complainant; and made an inappropriate appeal to jurors' personal fears.
b. The prosecutor consistently violated a court order by referring to the Complainant as the "victim," and the court erred in denying Defendant's six mistrial motions based on such violation.
BOTH INITIALLY, AND ON RE-INSTRUCTION, THE TRIAL JUDGE ERRED IN FAILING TO PROVIDE THE JURY WITH A "SPECIFIC UNANIMITY" CHARGE, AND APPROPRIATE JURY VERDICT SHEET, AS TO COUNT 4; AND HIS ANSWERS TO THE JURY'S QUESTIONS WERE INADEQUATE TO PRESERVE DEFENDANT'S RIGHT OF DUE PROCESS [NOT RAISED BELOW].
THE TRIAL COURT COMMITTED SEVERAL ERRORS WHICH, INDIVIDUALLY AND CUMULATIVELY, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL VERDICT [PARTIALLY RAISED BELOW].
a. The trial judge erred in permitting and accepting "jury" questions during trial requesting the provision of evidence, and in redacting evidence after it had been admitted in unredacted form.
b. The trial judge erred in failing to provide the jury with an "adverse inference" instruction, and in permitting the State to use Defendant's prior testimony at a suppression hearing against him.
THE MOTION JUDGE ERRED IN DENYING DEFENDANT'S PRETRIAL MOTION TO REQUIRE PRODUCTION OF THE COMPLAINANT'S PSYCHOLOGICAL RECORDS, AND HIS MOTION TO SUPPRESS.
Having considered the issues and the record, we are persuaded that there are a number of reversible errors that require the conviction to be vacated and the matter remanded for a new trial.
After carefully examining the transcripts, we conclude that three distinct aspects of the trial, singularly and in combination, jeopardized defendant's right to a fair trial. Those aspects were (1) the reception of substantive questions from the jury about defendant's BB gun and the prosecution's subsequent eliciting of testimony that responded to those questions; (2) repeated improper references to complainant Miles as a "victim" by the prosecutor and by a State's witness, in direct violation of the court's admonitions not to do so; and (3) the prosecutor's arguments in summation that defendant had "tailored" his testimony in an "orchestrated" manner. We examine the erroneous and prejudicial nature of these items in turn.*fn1
At several points during the course of the trial, jurors submitted written questions to the judge. The questions initially concerned only scheduling and housekeeping matters. However, the questions soon delved into more substantive topics. On the third day of trial, the jury sent four notes to the judge, one of which asserted, among other things, that "[t]he jury has . . . concerns [about] [t]he slow pace of the trial[.]" The notes were followed on the ensuing trial day by a juror blurting out in the courtroom, while a police detective was demonstrating how he had located the BB gun under defendant's bed, "Would you mind pointing that down?"
During a break in the detective's testimony, the judge was handed two more notes from the jury. These two notes raised very specific matters of substance concerning the defendant's BB gun. While the jury was in recess, the judge described the contents of the notes to counsel on the record as follows:
[THE COURT:] [N]ow I have questions from the jury.
I'm going to read the information to the attorneys and we'll come to an agreement as to what I will tell the jury. The first note that was handed to me said - - says "Can a pellet gun kill someone?" That was the first question. [The] [s]econd question addressed to the Court requests to [the judge], "I would like statistical information on the gun/weapon, such as 1:P velocity for both BB and pellet in F.P.S[.]" I would imagine that must mean Feet Per Second.
Number 2, impact capacity.
Number 3, general data on the gun.
The judge then suggested to counsel that the jury would be given "sufficient information" in the jury charges to respond to their expressed concerns about the evidence. Both counsel declined the judge's offer to impart, through the court, any additional guidance at that time to the jury.
When the jury returned from their break, the judge stated the following to them:
THE COURT: Welcome back, please be seated. The questions that were given to the Court have been discussed with the attorneys and we are of the opinion that we certainly appreciate your attentiveness and thoughtfulness, but I would think that during the course of the trial and during the instructions your questions will be addressed and sometimes what will happen during deliberations there will be a need for specific questions to be asked and answered. My thinking is that until such time as you begin your deliberations some of these questions may be answered during the course of the trial, or during my instructions; so we will hold these in abeyance. If they still need to be answered, you will let us know.
Neither attorney objected to this instruction to hold "in abeyance" the jury's evidentiary concerns.
Having been alerted to the "jury's" very specific queries about the characteristics of defendant's BB gun, the prosecutor chose to explore those topics on the next day, during the course of defendant's cross-examination. In particular, the prosecutor confronted defendant with the owner's manual for the gun that had been found by the police under his bed. Using the manual as a reference, the prosecutor posed numerous questions to defendant about specific attributes of the gun, including its maximum shooting distance, ammunition capacity, caliber and muzzle velocity (specifically 420 feet per second). Defendant stated that he had not noticed these specifications in the manual, doubting that he had read "past the ...