June 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MILLER, A/K/A SUN FIGUEROA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-03-656.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 20, 2006
Before Judges Stern and A. A. Rodríguez.
Following a jury trial, defendant Anthony Miller was convicted of first degree robbery, N.J.S.A. 2C:15-1. The judge imposed a ten-year term with a No Early Release Act (NERA)*fn1 parole disqualifier. Unfortunately, we have been provided with an incomplete judgment of conviction. Because page two is missing, we cannot discern what fines and mandatory penalties or fees were also imposed by the judge.
According to the State's proofs, on December 3, 2003 between 8:35 a.m. and 8:45 a.m., defendant entered an International House of Pancakes Restaurant in Neptune Township where he had previously worked as a cook. Defendant saw a waitress, whom he did not know. She had been working for approximately three months at the restaurant. She approached defendant and asked if she could help him. Defendant said he was looking for Sara, another employee. The waitress told defendant that Sara was not working at the time. Defendant asked to borrow a pen. The waitress gave him hers and went over to a table to wait on some customers.
When she returned, defendant handed her a piece of paper. She assumed that it was a note for Sara and put it in her notebook. Defendant said, "No, read the note." The waitress read the note, which stated, "Give me all the money in your register or I'm going to shoot you in the head." The waitress asked defendant if he was serious. Defendant replied, "Yeah, trust me."
Defendant stepped in front of the waitress, put his hand in his pocket and restated, "Yeah, I'm serious. I got a gun." The waitress told defendant that she did not know how to open the register. Defendant said that he used to work there and knew that she was able to open it.
At this point, two customers walked to the front to pay their bill. Defendant became concerned that someone was going to notice the waitress's demeanor. He told the waitress to get someone else to open the register. When she walked away to get Jackie Heron, the manager, defendant left the restaurant.
The waitress told Heron that someone threatened to shoot her in the head if she did not produce the money from the drawer. According to Heron, the waitress was sweating, shaking, and extremely frightened. Heron said, "It's probably somebody just joking with you." The waitress described the man as having a tattoo of a star on his face. Heron knew that defendant, whom she knew by the name of "Sun Figueroa," had a tattoo of a star on his face. Heron decided to call the Neptune Township police and report the incident. By the time Heron made her way to the dining room, the police were running in through the front door. Defendant was already gone.
The restaurant's surveillance video camera tape revealed defendant walking up to the register, receiving a pen from the waitress, writing a note, and handing the note to her. The tape showed defendant and the waitress conversing, and defendant hiding his hand in his left pocket. Heron viewed the surveillance tape and identified the person who had confronted the waitress as defendant.
At approximately 2:15 p.m. that day, defendant turned himself in at the Asbury Park Police Station. According to defendant, after leaving the restaurant, he telephoned his girlfriend, the mother of his children, to tell her about the incident. He expressed his concern that his threat to the waitress might cause her to contact the police. He discussed the situation with his girlfriend and decided to turn himself in to the police. After drinking forty ounces of beer and a small bottle of wine, he went to the Asbury Park Police Station.
Neptune Police Detective Brian Fromhold transported defendant from Asbury Park to Neptune. At Neptune Police Headquarters, defendant was advised of his Miranda*fn2 rights by Fromhold. He waived his rights and gave a formal statement. He confessed to robbing the restaurant earlier that day. Defendant explained that he went to the restaurant to get money to buy heroin. He chose the restaurant because people there knew him. So he thought "they would be easier on [him]." Defendant asked for Sara because he "worked with her before" and "figured she would just turn the money over to [him] without a problem." He did not have a gun. He put his hand in his pocket to make it appear that he had a gun.
At trial, defendant testified. He admitted going into the restaurant, writing a note, and presenting the note to the waitress. However, defendant testified that the waitress owed him $100 for ten bags of heroin he had sold her. He went to the restaurant only to get the money that she owed him, not to commit a robbery. He first demanded the money verbally from the waitress. She said she did not have it. Defendant wrote the note because he "needed her to understand that [he was] serious about the money." He did not want to make a scene in the restaurant. According to defendant, the note read, "I want my money. Give me my money or I'll kill you." Defendant intended that the waitress read the note. He took the note out of her hand and, when she walked to the back of the restaurant, he left.
According to defendant, when he gave his statement to Fromhold, he was tired, hungry and under the influence of drugs and alcohol. He used the details the Neptune police had conveyed to him to admit committing the robbery. He thought he would get in less trouble for that offense than if he admitted to dealing drugs to the waitress and threatening her.
On cross-examination, the Assistant Prosecutor asked defendant:
[Y]ou sat here and you listened to all of the testimony of all of the witnesses that the State presented, correct?
Defendant acknowledged that he had. Then on summation, the Assistant Prosecutor said:
It's convenient for [defendant] to sit here today after he hears all of the witnesses testify and to come up with that story.
On appeal, defendant contends:
HIS CONVICTION MUST BE REVERSED BECAUSE PERVASIVE PROSECUTORIAL MISCONDUCT RENDERED HIS TRIAL FUNDAMENTALLY UNFAIR (Not Raised Below).
The Prosecutor's Repeated And Unfounded Accusations That [Defendant] Tailored His Trial Testimony To Match That Of The Other Trial Witnesses Directly Contravene State v. Daniels And Its Progeny.
Specifically, defendant argues that the Assistant Prosecutor implied that defendant "tailored" his testimony because the event was recorded on tape, and the video confirmed the waitress's testimony about the note. From our review of the record, we conclude that the prosecution's improper insinuation of tailoring testimony warrants a reversal and a new trial.
In general, a prosecutor is afforded significant leeway in summation so long as the comments in question are "reasonably related to the scope of the evidence presented." State v. Mahoney, 188 N.J. 359, 376 (2006), cert. denied, 127 S.Ct. 507, 166 L.Ed. 2d 368 (2006) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). Although prosecutors are encouraged to give a vigorous closing argument, Frost supra, 158 N.J. at 82, "the primary duty of the prosecutor is not to obtain convictions, but to see that justice is done." State v. Blakney, 189 N.J. 88, 96 (2006) (quoting State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993)); State v. Roman, 382 N.J. Super. 44, 56-57 (App. Div. 2005). However, every improper comment or question by a prosecutor does not warrant the reversal of a conviction. State v. Wakefield, ___ N.J. ___ (2007); State v. Daniels, 182 N.J. 80, 96 (2004); State v. Smith, 167 N.J. 158, 181 (2001). A court "may reverse only if the prosecutor's comments were so egregious that [they] deprived the defendant of a fair trial."
Daniels, supra, 182 N.J. at 96 (quoting Frost, supra, 158 N.J. at 83) (internal citations omitted).
This matter was tried after the Daniels case was decided. The New Jersey Supreme Court in Daniels, supra, 182 N.J. at 98, rejected the holding of Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed. 2d 47 (2000), that prosecutorial comment on defendant's tailored testimony was not problematic. Id. at 73, 120 S.Ct. at 1127, 146 L.Ed. 2d at 59. The Court set out to determine whether accusations of tailoring of testimony by a defendant are of a sound prosecutorial technique as a matter of State law. Daniels, supra, 182 N.J. at 97-8. Although a criminal defendant who elects to testify will be subject to the same credibility attacks as any other witness, the defendant is situated differently in that he or she possesses certain fundamental rights essential to a fair trial. Ibid.
The Court in Daniels identified the following rights of a criminal defendant: a criminal defendant has the right to be present at trial, see Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L. Ed. 2d 353, 356 (1970), to be confronted with the witnesses against him and to hear the State's evidence, see Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed. 2d 923, 926, to present witnesses and evidence in his defense, see Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1923, 18 L.Ed. 2d 1019, 1023 (1967), and to testify on his own behalf, see Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97 L.Ed. 2d 37, 44-45 (1987). [Daniels, supra, 182 N.J. at 97-8.]
The Court went on to hold that "[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts those rights, permitting the prosecutor to punish the defendant for exercising that which the constitution guarantees." Id. at 98. Therefore, even though the Constitution allows such comments, the Court found "that they undermine the core principle of our criminal justice system -- that a defendant is entitled to a fair trial." Ibid.
The Court in Daniels identified two different categories of prosecutorial accusations of tailoring: specific and generic. Ibid. Generic accusations, which are those with no evidentiary basis, are prohibited. Ibid. Allegations are specific when evidence in the record indicates that tailoring may have occurred. Id. at 98-9. In those situations, prosecutors are permitted to comment, but only in a limited fashion. Id. at 99. The comments must be based on the evidence and "the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony." Ibid.
The same analysis applies to cross-examination. Ibid. On that point, the Daniels Court stated that if the judge has seen evidence that the defendant tailored his testimony, the defendant may be questioned based on such evidence, but no reference shall be made about the defendant's attendance at trial or his ability to hear other witnesses. Ibid.
Here, during cross-examination and summation, the Assistant Prosecutor made inappropriate comments regarding the fact that defendant was in court and able to hear the testimony of the witnesses for the State. More importantly, the Assistant Prosecutor suggested that defendant had seen the security camera videotape, and tailored his testimony to the immutable images of the videotape. Although this area can be considered specific accusations of tailoring because of the prior statement made to the police, the comments about defendant's presence at trial and ability to observe all other witnesses and demonstrative evidence are prohibited. Moreover, no curative instruction was given.
Accordingly, the Assistant Prosecutor's improper challenge to defendant's credibility based in part on defendant's exercise to be present at trial, warrants reversal of the conviction and a new trial.
We address other contentions by defendant for the sake of completeness and for guidance at the re-trial. Defendant contends that:
The Prosecutor Engaged In Numerous
Other Instances Of Misconduct Which, Particularly When Viewed Cumulatively And In Combination With The Daniels Violations, Require Reversal Of [Defendant's] Conviction.
Specifically, defendant argues that, "the prosecutor used [defendant's] prior convictions for improper purposes." We are not persuaded.
On defendant's cross-examination, the prosecution addressed defendant prior convictions. The following exchange occurred:
Q: Well, [defendant], given that you have these two other incidents where you were processed and ultimately convicted in Florida, it's fair to say that you've been through the criminal justice system, correct?
Then, on summation, the Assistant Prosecutor said: "This is someone who's been convicted twice before. He's been through the criminal justice system. He knows what he's doing." We do not find the question or comment to be unfair or improper. Because defendant testified, his credibility was subject to impeachment. N.J.R.E. 609 permits the credibility of a witness to be challenged by a history of prior convictions. However, if the witness is the defendant, such evidence must not be used to suggest that the defendant has a predisposition to commit crimes. State v. Williams, 190 N.J. 114, 132 (2007); State v. Beckler, 366 N.J. Super. 16, 26 (App. Div. 2004); State v. Goode, 278 N.J. Super. 85, 91 (App. Div. 1994). By the same token, the prosecuting attorney may comment on the defendant's history of convictions to remark on the defendant's credibility, so long as there is no suggestion of a propensity to commit offenses. State v. Sinclair, 57 N.J. 56, 63 (1970); see State v. Brunson, 132 N.J. 377, 385 (1993) (finding that as in Sinclair, the need for curative instruction to mitigate possible prejudice of a prior conviction is necessary to ensure defendant enjoys a fair trial).
Here, the comments by the Assistant Prosecutor are sharp, but the point is that defendant may have learned how to lie in order to navigate the criminal justice system. There is no suggestion that defendant is likely to commit crimes. Thus, we conclude that the prosecutorial question and comment are not "clearly and unmistakably improper." State v. Nelson, 173 N.J. 417, 460 (2002); State v. Rodriguez, 365 N.J. Super. 38, 47 (App. Div. 2003).
Defendant also argues that "the prosecutor improperly stated that [defendant] used an alias." During the prosecutor's redirect examination of Heron, the following exchange took place:
Q: In what context did you learn that Sun went by a different name?
A: At the police station later on.
Q: And, when was that?
A: When I got down there in the afternoon to give my statement.
Q: Okay. And, at that point is that when you learned that he had an alias?
Q: And, did you learn that from Detective Fromhold?
Q: Okay. And, was that Sun Figueroa?
Q: And, Sun Figueroa is who you know as Anthony Miller?
Heron testified that "Sun Figueroa" is a nickname that she herself insisted upon defendant in order to avoid confusion with another employee named Anthony Miller. During the direct examination of Detective Fromhold, the Assistant Prosecutor elicited the following testimony concerning defendant's use of an alias:
Q: . . . While interviewing Ms. Heron, did you ascertain a description or any information relating to the person who was involved in the crime?
A: Well, she told me who was on the tape. She looked at the tape and told me who was on the tape.
Q: Okay. And when you say she told you who was on the tape, did she provide you with a name?
A: She told me it was Sunny. And then she proceeded to tell me it was Sun Figueroa and that he was a former employer -- employee at the [Restaurant].
Q: Okay. And based on the information that you received with an actual name of the person, what, if anything, did you do with that information?
A: We had head -- headquarters check on that information.
Q: And were you able to ascertain the -- any information with respect to this Sun Figueroa?
A: We were able to obtain that that was an alias. The name pertaining to Sun Figueroa's alias was Anthony Miller.
We disagree that these questions and comments by the Assistant Prosecutor were improper. We are mindful that "[t]he principle objection to the use of an alias in a criminal proceeding is that an alias implies that the defendant belongs to the criminal class and thereby prejudices the jury." State v. King, 372 N.J. Super. 227, 241 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005) (quoting State v. Salaam, 225 N.J. Super. 66, 73 (App. Div. 1988)). Here, the origin of the nickname "Sun Figueroa" was explained by Heron, a State's witness. Her explanation dispels any notion that the nickname was associated with a criminal milieu. Moreover, the name itself is neutral, there is no pejorative connotation to it. See State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998) (holding that there is a concern when a defendant has a pejorative nickname).
We conclude that the admission of the nickname "Sun Figueroa" into evidence is not a basis for reversal. No "tangible form of prejudice" has been demonstrated here. King, supra, 372 N.J. Super. at 241. Defendant also alleges prosecutorial misconduct in that: (1) "the prosecutor erroneously and improperly mischaracterized the facts and the law;" and (2) "the prosecutorial misconduct that pervaded [defendant's] trial raises a reasonable doubt as to whether the jury would have convicted defendant of first degree robbery had the improper conduct not occurred." We reject these arguments, determining that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). The first argument is largely based on the fact that the Assistant Prosecutor committed misconduct by "mischaracterizing the December 3, 2003 incident as an 'armed robbery'." We discern no misconduct. The comments made by the Assistant Prosecutor were proper. The State charged defendant with first degree robbery.
Therefore, the State was free to argue from the evidence that defendant committed a robbery. The second argument is speculative, other than with respect to the Daniels violation, which we have already addressed.
Defendant also contends that:
THE EVIDENCE IS INSUFFICIENT TO SUPPORT A FIRST DEGREE ROBBERY CONVICTION BECAUSE IT FAILS TO PROVE BEYOND A REASONABLE DOUBT THAT THE VICTIM SUBJECTIVELY AND REASONABLY BELIEVED THAT [DEFENDANT] POSSESSED A DEADLY WEAPON. [DEFENDANT'S] CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY PROPERLY REGARDING THE ELEMENTS OF "SIMULATED WEAPON" FIRST DEGREE ROBBERY (Not Raised Below).
From our review of the record, we conclude that the evidence was sufficient to sustain the robbery conviction. It is now settled law that a defendant's movement, as if to grab an item concealed behind his body to use against victim, coupled with his threat and demand that the victim release her purse, is sufficient to support a conviction of first degree robbery, although the defendant is not actually armed. State v. Chapland, 187 N.J. 275, 291-92 (2006). This is so because the defendant's actions and words created the impression that he had a weapon. Ibid.
Here, the proofs, which the jury credited, establish that defendant made a movement simulating possession of a weapon as well as expressly telling the waitress, "I got a gun." We note that defendant's movement of placing his hand in his pocket was also captured on the videotape. All of this was sufficient to establish the element "while armed" because, this led the waitress to reasonably believe he was holding a weapon. Moreover, the note stated that he would kill the victim.
We also reject defendant's contention that during summation, the Assistant Prosecutor mischaracterized the law concerning defendant's simulation of possession of a deadly weapon, by stating as follows:
[E]ven if you believe the defendant's version of the facts in its entirety, he still is admitting to the fact that he committed robbery in the first degree. He says that he was there to get the money. He went there and believed that she would think he had a gun in his pocket when he made that threat and that the threat by his own words involved the words I will kill you. So either way you look at it he's guilty of robbery in the first degree.
The comment is well-within the bounds of proper argument on the evidence presented.
Finally, defendant argues that his conviction must be reversed because the simulated weapon jury instruction was inadequate in two respects. First, it failed to convey that, to support a first degree robbery conviction, defendant "must have fashioned a tangible object in a way that led [the waitress] reasonably to believe that the object was capable of causing bodily injury or death." Second, it "failed to convey that the only kind of gesture that can support a first degree robbery conviction is one which simulates possession of a deadly weapon." This argument is raised as plain error because counsel did not object to the jury charge. R. 2:10-2. However, we conclude that the charge given was proper and comported with the holding in Chaplan, supra, 187 N.J. at 291-92. We note that the judge followed the Model Jury Charge on simulated weapons in existence in 2003. The Supreme Court in Chapland deemed that this Model Charge is sufficient and legally correct in its explanation of "simulated weapon." Id. at 288.
Reversed and remanded to the Law Division, Monmouth County for a new trial. We do not retain jurisdiction.