June 7, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY SCOTT MARRERO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 05-03-408.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 29, 2007
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Tried to a jury, defendant, Jeffrey Scott Marrero, was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1. He was sentenced as a second-degree offender, see N.J.S.A. 2C:44- 1f(2), to a five-year custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Alleging various trial errors, he appeals from the conviction and we reverse and remand for a new trial.
The events underlying the trial relate to a knife-point robbery of Ralph Greiss, the owner of St. Mina's Deli in Bayonne, New Jersey. Only Greiss and Severo Cordero, a customer who entered the deli during the robbery, were present during the criminal act.
Greiss testified that on January 11, 2005,
[a] guy, he came about 6 o'clock I think if I don't recall the time correctly, and he ask me -- he need the result for the Pick Its for the midday. And he don't look familiar to me. I look to him. I tell him, wait couple seconds, I finish customer front of you. And I did finish the customers first, and I give him the result. Like, half an hour later, he come, and nobody in the store. And he run around the counter with a knife, and he rob me.
Greiss also testified that another customer walked in as the crime was being committed and that $700 was taken.
Greiss, however, was unable to identify defendant as the perpetrator. When asked if he saw the person who robbed him in court, Greiss replied, "He's not here." Unable, at this point, to obtain an in-court identification, the prosecutor turned to the events following the robbery. Greiss related that he gave the police a statement shortly after the robber left the deli and that he went to the police station several hours later, where he was shown "about, like, 200 pictures." Greiss testified that he "found [defendant's] picture" and pointed it out to the police.
He was asked if anyone talked to him about the pictures. Greiss replied, "[n]o" but when the question was repeated he added, "[t]hey told me this is a picture from the people, they been arrested before." After defendant objected, the judge held a sidebar conference at which counsel asked for a mistrial. The judge denied this request, commenting that "[t]his is not a significant thing." He also indicated that "[a] curative instruction can be given. What your -- the whole defense is misidentification, and this -- this is not a significant enough event to cause a mistrial. . . . I will give a curative instruction."
The judge gave the following instruction:
Okay. Ladies -- ladies and gentlemen of the jury, the witness is obviously very nervous and -- and just told us something that was told to him. Okay? And that's called hearsay, and hearsay is not admissible unless it meets certain criteria. And none of those criteria are present here.
The fact that police have photographs of people, they have it for many, many reasons. But one thing I can tell you is that in this particular case, this defendant has no other convictions. So the fact that that the police may have had his photograph and the reason for having his photograph or how they obtained his photograph is not relevant in this matter.
The only thing that's relevant in this matter is that they did have a photograph and it was shown to the witness. Okay? So for any other reasons, you must disregard for any other potential things you may think happened. The only thing that's relevant is that the police did have a photograph that they've shown him. (emphasis added.)
After Greiss unequivocally testified that the person in the picture was the person who committed the robbery, the prosecutor again attempted to have Greiss make an in-court identification. He asked Greiss "to take a look again around the entire courtroom" and see if he could identify the person who robbed him. Greiss identified one of the jurors. He did not identify the defendant in court.
Severo Cordero, the customer who walked into the store during the robbery, testified:
Well, as I walked in, I seen, you know, two gentlemen behind the counter. . . . And all of a sudden, you know, as I walked in, the -- I knew something was wrong because all of a sudden I walked in, I seen the two guys. And then the next thing, the guy stopped, and he jumped over the counter. He knocked over the cigarettes, and the gentleman ran at me. He, like -- as he ran, he hit me with something, then even apologized he hit me. Then he ran out of the store.
Cordero described the person who committed the robbery:
Well, the guy had a black, fluffy coat. He was clean cut. The hairs were, like, sticking out. He had a ski hat right to here, brown hair. You know, he was clean cut. He was Spanish, young, 27 to 30, you know. And like I said, he was polite. I couldn't tell what he had in his hand . . . like I said, he hit me pretty hard. And like I said, he was -- you know, he was polite as he went out. You know, I thought he had a knife, but I couldn't be sure what he had.
Cordero testified that he was shown books of photographs by the police and identified "three or four pictures that . . . looked like the . . . person" who committed the robbery. He did not indicate that any picture looked more like defendant than any of the others and the jury was not shown the photos identified by him. Cordero, therefore, did not provide evidence of an out-of-court identification of defendant. That deficiency was remedied by Detective Michael Kubert, who testified that he took a formal statement from Cordero and showed him three photo books, each containing 280 pictures. Kubert said that Cordero "looked through the books. He arrived at a photo. He said, this male looks a lot like the gentleman that committed the robbery . . . but [he couldn't] be 100 percent sure, but his eyes look a lot like that." Kubert also claimed that to his knowledge Cordero did not "point or comment on any other pictures."
Coredero did make an in-court identification of defendant. He claimed to have "looked at [the robber's] face pretty good," but when asked if he saw this person in court, Cordero replied, "I'm being honest. [Defendant] -- well, . . . he looks just like him. I ain't going to -- like, 9 out of 10 . . . I think the man's ears are a little smaller . . . I'm not saying 100 percent." He later modified his certainty scale, admitting it could be "7 out of 10, 8 out of 10" and agreed with defense counsel that "in your mind as you sit there right now, you have some doubt -- some real doubt as to whether or not that's the person you saw."
Kubert also described the efforts made to locate defendant: "After he was identified by the victim, we used our in-house computer to find information on him. We found out a job and a phone number." No objection was made to that comment.
Sergeant William Nide, an investigating officer, testified that he was aware of a warrant for the arrest of the suspect in this robbery case and that on January 12 he and his partner were passing by . . . and my partner was familiar with defendant, and we saw him . . . And when we stopped and asked him . . . what are you doing, where are you going, he said, I'm going into Headquarters.
So we said, oh, you want a ride. He said sure. He got into our vehicle. We proceeded to Headquarters. It was only a block-and-a-half away . . . .
No objection was made to this testimony.
After a motion for a judgment of acquittal, see R. 3:18-1, was denied, defendant produced evidence not relevant to the issues on appeal.
In his closing argument, the prosecutor made the following comments regarding Cordero's ability to identify the defendant:
And Mr. Cordero describes [seeing the defendant] as having tak[en] about six minutes. Could it have been six seconds? Who knows? Did it happen? Yes.
Now, ladies and gentlemen, the judge is going to tell you that you cannot deem from this by anything from the outside. But the judge is certainly not going to tell you that you have to leave your life experiences and your common sense at the door when you sit down to deliberate in this case. And how many of us have at one time or another been in an awkward moment with someone (Indiscernible) And seconds may seem like minutes, like an eternity. I know some of you may have been victims of crimes or know victims of crimes. Can people be nervous? (emphasis added.)
The prosecutor also reminded the jury that Cordero identified defendant from several photos. He began the discussion of that identification with a comment to the effect that the police were doing their job. They're looking for leads, leads to try to get something going in the investigation. (Indiscernible) is first.
I know that many times you read the newspapers -- yeah, people get away with crime. They were just trying to investigate. That's what they were doing here. (emphasis added.)
He then turned to the identification of the pictures:
So now out of these 600, out of these 600 pictures Mr. Cordero says look at -- there were two or three or four. He says -- first he says two or three, then three or four that look similar. And with respect to [defendant's] picture, that was the closet out of three (Indiscernible) pictures. (emphasis added.)
After the jury began deliberating, one of the jurors became ill. The judge spoke with the juror without counsel. Although the record is not clear on this point, we are advised by appellate counsel that the events transpired between noon and one p.m. when trial counsel were at lunch. The following colloquy ensued:
THE COURT: We're now on the record, and it's just you and I. The camera is (Indiscernible). I can obviously see you're in distress . . . have you been feeling sick for some time or it just started?
JUROR: It just started.
THE COURT: Right after you ate? Does this happen often or do you feel like -- continue -- you can't continue deliberating?
JUROR: I (Indiscernible). . . . .
THE COURT: Okay. Do you wish to be excused?
No consideration was given to the possibility that deliberations be suspended and renewed, if possible, the next day. In any event, the judge then contacted counsel and informed them that juror number nine "was extremely ill and vomiting" and that he "had a conference with her . . . in my chambers on the record." The judge told counsel that "she wants to stay close to a bathroom" and that she was "staying outside in the hallway." Juror number nine was replaced with an alternate drawn at random. The judge instructed the jury that as of that moment they were "a new jury" and that they "must start [their] deliberations over again."
On appeal defendant raises the following arguments:
THE ERRORS COMMITTED AT TRIAL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND REQUIRES A REVERSAL OF HIS CONVICTION AND A NEW TRIAL.
A. The trial court violated Defendant's constitutional rights to due process and to a fair trial by engaging in ex parte communications with a juror after deliberations had begun, and then excusing the juror outside of trial counsel's presence and without affording trial counsel the opportunity to question the juror prior to her excusal, and to be otherwise heard.
B. The State's plainly prejudicial closing comments violated Defendant's right to a fair trial.
C. Defendant's federal and state constitutional rights to a fair trial was violated when the complaining witness testified that all of the photographs he viewed on the night of the robbery were of people who had been previously arrested, when the witness' testimony was not met with a timely and complete curative instruction after one was requested by trial counsel, and when there was testimony given by police officers, after the incomplete instruction was provided, to indicate that their department had prior knowledge of the Defendant.
We consider first the claim that the judge's removal of a juror, after an exchange in which counsel did not participate, requires a reversal of the conviction. The parties have couched this issue in terms of the judge's ex parte communication with the juror. Under these circumstances, the communication itself was not inappropriate. We recognize that emergencies may arise requiring unorthodox procedures. No one would suggest that a judge inquire of counsel if a juror should be sent to the hospital when the juror exhibits signs of acute distress and we see no reason why the judge should have waited until counsel returned from lunch to address the juror's physical problems.
Nevertheless, we believe the dismissal of the juror was precipitous. Because removal of a sitting juror has a "clear potential for prejudicing the integrity of the jury's deliberative process, it should be invoked only as a last resort." State v. Hightower, 146 N.J. 239, 254 (1996).
Certainly the more prudent course would have been to suspend deliberations until the following day to determine if the juror might continue. See State v. Trent, 157 N.J. Super. 231, 240-41 (App. Div. 1978), rev'd on other grounds, 79 N.J. 251 (1979); State v. Lipsky, 164 N.J. Super. 39, 43-44 (App. Div. 1978).
The State correctly notes that both Trent and Lipsky held that the failure to delay the determination of whether substitution of a juror was necessary did not constitute an abuse of discretion. In both cases, however, counsel were present and in a position to request other courses of action. A defendant has the right "to argue the merits of [his] case in court." Fineberg v. Fineberg, 309 N.J. Super. 205, 218 (App. Div. 1998) (citing Hartsfield v. Fantini, 149 N.J. 611, 618 (1997)). The right to be heard has been "described as the 'fundamental requisite of due process of law.'" State v. Lebbing, 158 N.J. Super. 209, 216 (Law Div. 1978) (quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914)). We believe the failure to involve counsel in the decision to remove the juror was, under these circumstances, error.
We also find the information conveyed to the jury respecting the identification of defendant's picture at the police station, in combination with the judge's attempt to cure the error and the prosecutor's comments in closing, mandate reversal. We examine these events in the context of a case in which the identification was, as both sides recognize, less than sure. Greiss informed the jury that the picture he had identified as that of the robber was selected from those of persons who had been arrested. This was clearly error. See State v. Cribb, 281 N.J. Super. 156, 160 (App. Div. 1995) (noting that allowing a jury to learn that a photo identified as that of defendant was a "mug shot" implies a criminal history). When the jury knows that a defendant was identified from a picture supplied by the police, a defendant is entitled to a charge that dissipates that implication. See Model Jury Charge (Criminal), Identity - Police Photos (Revised Jan. 6, 1992).
The judge gave a truncated version of that charge. We do not fault the judge for shortening the Model Charge because, in this case, the jury was not left to speculate as to how the police came to have the picture; they were told it was because defendant had been arrested and, accordingly, no charge could have provided reasons other than an arrest. The judge did tell the jury that the reason the police had the picture was not relevant. He continued, however, to tell the jury, in effect, that while defendant had been arrested previously, he had never been convicted. This information was then used by the prosecutor when he told the jury that the police showed the pictures to the victim in an attempt to build a lead in the investigation and commented that "people get away with crime."
The effect of all of this was to convey to the jury that defendant, who had been arrested but not convicted, had gotten "away with crime." In essence, the jury was told that defendant was a "bad guy" who, if he was not guilty of this robbery, was surely guilty of something else. That inference was strengthened by the police testimony that defendant was known to them and that his personal information was in "our in-house computer."
We recognize that a prosecutor is afforded considerable leeway to comment on evidence or facts and is permitted to draw reasonable inferences during a closing. State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969)). Here however the remarks went well beyond the evidence and were "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Murray, 338 N.J. Super. 80, 87 (App. Div.) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001)), certif. denied, 169 N.J. 608 (2001). Although defendant failed to object to the comment, we are satisfied that it constituted plain error because it was "clearly capable of producing an unjust result."
R. 2:10-2. The revelation to the jury that defendant had been arrested but not convicted together with the prosecutor's comments concerning people who "get away with crime" so infects the integrity of the trial that we have no confidence in the result. A retrial is necessary.
We comment briefly on defendant's argument that the prosecutor unfairly commented on Cordero's testimony. We agree that the comments attempting to explain Cordero's nervousness by reference to the jurors' experience as victims of crime was improper because it was "calculated to produce a verdict based on the jurors' prejudices rather than the evidence in the case." State v Negron, 355 N.J. Super. 556, 576-77 (App. Div. 2002) (citing State v. Frost, 158 N.J. 76, 83 (1999); State v. Farrell, 61 N.J. 99, 102-05 (1972); State v. West, 29 N.J. 327, 338-39 (1959)). Similarly, the comments that Cordero had identified defendant's picture as "the closest out of three (Indiscernible) pictures" selected by him was prejudicial because it misstated the actual testimony by ascribing a comment to Cordero that was never made. See State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005) (noting that prosecutors in summation can not "stray beyond the evidence" (quoting State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. denied, 177 N.J. 572 (2003))).
Although there was no objection to these comments, we conclude that they were sufficient, cumulatively, in a case with less than certain identification evidence, to form an independent basis for reversal. See State v. Reddish, 181 N.J. 553, 615 (2004); State v. Koskovich, 168 N.J. 448, 540-41 (2001).
Reversed and remanded.
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