July 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEFON S. PARSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 04-08-1928.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2006
Before Judges Graves and Lihotz.
Defendant Stefon Parson, along with his brother, Stevie Parson, and two other individuals were charged in a three-count indictment with third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft of movable property (cellular telephones), N.J.S.A. 2C:20-3(a) (count two); and third-degree conspiracy to commit the crime of burglary and/or theft, N.J.S.A. 2C:5-2 and/or N.J.S.A. 2C:18-2 and/or N.J.S.A. 2C:20-3 (count three). On count one, defendant was found not guilty of burglary but convicted of the lesser included disorderly persons offense of criminal trespass; on count two, defendant was convicted of fourth-degree theft of cellular telephones having a value between $200 and $500; and on count three, he was found not guilty of conspiracy. Defendant was sentenced to a one-year term of probation, and, as a condition of probation, he was required to pay fines, penalties, and assessments.
On appeal, defendant presents the following issues:
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT PERMITTED THE CO-DEFENDANTS TO INTRODUCE EVIDENCE THAT WAS HELD INADMISSIBLE AGAINST THE DEFENDANT IN A PRIOR MIRANDA HEARING, WHEN THE COURT DENIED DEFENDANTS' MOTIONS FOR SEVERANCE TO AVOID PREJUDICE RESULTING FROM A JOINT TRIAL.
THE VERDICTS OF GUILTY AND TRESPASS AND THEFT OF PROPERTY VALUED OVER $500 WERE AGAINST THE WEIGHT OF THE EVIDENCE (Not raised below.).
Based on our review of the record and applicable law, we agree the trial court abused its discretion when it denied defendant's motion for severance. We therefore reverse defendant's judgment of conviction and remand the matter for a new trial.
Although the precise sequence of events is not entirely clear from the record before us, it is reasonably clear defense counsel could not have been aware of the need for a Miranda*fn1 hearing until the State provided supplemental discovery shortly before trial. Indeed, on the day of trial, it was still not clear a Miranda hearing was required because the assistant prosecutor informed the court she was "not completely sure" the State was going to utilize the statement defendant allegedly made to the police at the time of his arrest. Thus, the evidentiary hearing, which resulted in the suppression of defendant's oral statement, did not take place until after the jury was selected, and the assistant prosecutor advised the court the State would seek to admit defendant's statement into evidence.
The sole witness to testify at the suppression hearing was Patrolman Edward Ungrady, a member of the Marlboro Township Police Department. His testimony included the following:
Q: As you were processing Stefon, what if anything did you say to him?
A: I said you're being placed under arrest.
Q: Okay. And did Stefon say anything to you?
A: "For what?"
Q: And what did you say to Stefon?
A: The cell phones that are in your car.
Q: And did Stefon say anything back to you?
A: Yeah, he seemed agitated and said, "I took those phones because they owed me money."
After the court suppressed defendant's oral statement, Mr. Coghlan, the attorney for co-defendant Kunta Goodridge, advised the court severance was needed because he intended to utilize defendant's suppressed statement:
MR. COGHLAN: Judge, unfortunately this creates a big problem for my defense, as well as Mr. Heckler's defense.
THE COURT: Right.
MR. COGHLAN: And that is that I would fully anticipate eliciting that information because essentially --
THE COURT: If he takes the stand.
MR. COGHLAN: No, no.
THE COURT: Go ahead.
MR. COGHLAN: It's a declaration against penal interest. It's admissible as a hearsay exception.
The problem I foresee is, I fully appreciate the fact that in this particular setting Mr. Hoffman doesn't want it admissible against his client. I think the only remedy at this point is to sever both my client and Mr. Heckler's client [(co-defendant Kerron Paul)] from this trial because I fully need, I want that statement in the case.
If I'm in a case where one co-defendant has arguably accepted responsibility and has admitted guilt, that helps my defense. I think the only way to do it at this point is to sever out maybe even all, Mr. Howley --
MR. HOWLEY [ATTORNEY FOR CO-DEFENDANT STEVIE PARSON]: Yeah, I was just going to say I'm probably in that same situation, Judge. It's a statement in which the individual inculpates himself.
THE COURT: Well, Mr. Coghlan, I wish you had urged the [c]court to do the Miranda Hearing before we had picked the jury.
MR. COGHLAN: You know, I wish I had, Judge, but I had no idea what this Officer was going to say. . . .
Honestly, Judge, you can't tell from that report when this statement was given. I read it, and I assumed this was given at police headquarters, after being arrested, after being given Miranda warnings.
If there was a real problem with this Miranda issue, I don't know that it falls upon us to have to have raised it before we swore a jury.
THE COURT: Yes, but my point is, say I said the statement is coming in. Then you wouldn't have wanted a severance is that what you're saying?
MR. COGHLAN: Absolutely. The statement comes in, it helps our case, it's admissible, I have no reason for a severance. I fully expected the statement was going to be ruled admissible until I started hearing the specifics of how they got the statement for the first time, which was not in any report.
THE COURT: Prosecutor?
MS. HANDLER: Well, Judge, Mr. Coghlan is saying he read the report, he couldn't tell. Officer Ungrady was available if there were any questions, . . . certainly he could have asked if anything was unclear.
Mr. Coghlan came in the case late. You know, I scrambled to get information together for him. If there was a question here, he certainly could have asked.
And . . . the bottom line is that it really doesn't change the case for the other three co-defendants dramatically to the point where they're going to be so prejudiced that a severance at this point is warranted. They're free to present that defense, they're free to elicit that testimony. Certainly they don't have to. They're not under an obligation to present a defense since they were intending to rely on that anyway.
MR. COGHLAN: I'm not sure, am I missing something, Judge? Are we free to elicit that testimony?
THE COURT: Yes, you're free.
MR. COGHLAN: Then I'll go ahead. I'll ask the Officer that question when he's testifying. I don't think Mr. Hoffman [(defendant's attorney)] is going to agree with that.
THE COURT: No, but my ruling only applied to the State's case in chief.
MR. COGHLAN: Well that's the part where I would elicit the testimony.
THE COURT: As part of your defense though?
MR. COGHLAN: Yes.
THE COURT: Go ahead, Mr. Hoffman.
MR. HOFFMAN: I mean I know that I'm going to have to object to anyone raising that statement, bringing it into evidence. I'm just anticipating that based on its effect on my client, how prejudicial it is to my client.
THE COURT: All right. Well your objection is noted for the record. So what are you asking for, Mr. Hoffman? Because you've heard my ruling with regard to Miranda.
MR. HOFFMAN: . . . I'm going to object to it being admitted at all, whether it's in the Prosecutor's case in chief, or any other party's case or defense.
THE COURT: And what would your basis be for me denying the defense the opportunity, say Mr. Coghlan the opportunity to raise it?
MR. HOFFMANN: Well I just am unsure as to how I can cross examine this Officer as to that without prejudicing my client based on the Miranda situation. I don't know how that's going to balance out in terms of the jury's eyes, their understanding of Miranda versus the fact that there's an officer up there testifying about this statement. It just seems that it's going to be completely prejudicial to my client.
THE COURT: So I still come back to what my issue is that the severance motion whether it would come from any of the defendants should have been before we picked the jury. The Court can't address severance at this point. It's a pretrial motion. My understanding is it's a pretrial motion under the Court Rules.
Late in the day, the court denied defendant's request for a severance, and it precluded the State from eliciting defendant's statement "in its case in chief." But the court ruled "the defense can elicit it." The next day, defendant's attorney asked the court to reconsider in light of State v. Morant, 241 N.J. Super. 121 (App. Div.), certif. denied, 127 N.J. 323 (1990). In addition, defense counsel stressed there had been no reason to request a severance until defendant's statement was suppressed and there was no need for the suppression hearing until the State had provided the supplemental discovery "at the last minute." Thus, defense counsel argued the court was "allowing the [p]rosecutor to benefit from that, and that's what is really wrong here." Nevertheless, the court ruled Morant was not controlling: "What is the test for severance? It is prejudice as the [d]efense has argued, but also judicial economy. The fact of the matter is that we have picked a jury and we have sworn a jury and that is what takes this situation out of the Morant case."
Based on the trial court's ruling, Mr. Howley, the attorney for defendant's brother, elicited the following testimony from Patrolman Ungrady during cross-examination:
Q: Stefon Parson in particular wanted to know why he was being arrested; is that correct?
A: That's correct, sir.
Q: That is this man here?
A: That's correct.
Q: And what did you tell him?
A: That you are under arrest for stealing the cell phones that are in the back of your car.
Q: Did he say anything to you?
A: He said I stole those cell phones--he said I took those cell phones in lieu of payment.
MR. HOFFMAN: I have to object for the record.
THE COURT: All right. Same ruling as previously.
MR. HOFFMAN: I understand.
Q: And he specifically told you that he took those cell phones?
Q: And he specifically told you why he took those cell phones because he had been shorted in his paycheck?
A: He said he took them in lieu of payment.
Q: In lieu of payment, those were his words.
MR. HOWLEY: Nothing else. Thank you.
Instead of granting the severance, the court's solution was to charge the jury, prior to their deliberations, that it was their "function to determine whether or not each statement was actually made by the [d]efendants who purportedly made it and[,] if made, whether the statement or any portion of it is credible." But this instruction did nothing to neutralize the undue prejudice that resulted when the jury was allowed to consider suppressed evidence. As we have previously stated, "evidence based upon unlawful conduct of police officers cannot be admitted against a criminal defendant in New Jersey even at the request of a co-defendant private citizen." Morant, supra, 241 N.J. Super. at 137. In this case, as in Morant, "we cannot say with any degree of assuredness" that defendant was "not unduly prejudiced by the introduction of the suppressed evidence." Id. at 138.
Defendant's judgment of conviction must be reversed. As the trial court correctly noted, joint trials foster efficiency, however, "the interest in judicial economy cannot override a defendant's right to a fair trial." State v. Sanchez, 143 N.J. 273, 282 (1996). That is what happened here.
Reversed and remanded for a new trial.