December 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARJORIE CASTILLO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 03-07-1377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Wefing and Lyons.
Tried to a jury, defendant was convicted of two counts of aggravated assault, one in the second degree and one in the third degree, N.J.S.A. 2C:12-1(b)(1), -1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). At sentencing, the trial court merged the conviction for third-degree aggravated assault and possession of a weapon for an unlawful purpose into the second-degree conviction for aggravated assault. It then proceeded to sentence defendant as if she had been convicted of a third-degree crime and imposed a three-year term of incarceration, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. It also imposed a concurrent term of three hundred sixty-five days for unlawful possession of a weapon. Defendant has appealed her convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse and remand for a new trial.
On appeal, defendant raises the following arguments:
THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT A NEW TRIAL WHERE THE STATE'S CROSS[-]EXAMINATION OF THE DEFENDANT VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT; AND THUS, DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HER.
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO DEVIATE FROM THE PRESUMPTIVE TERM OF IMPRISONMENT AND IMPOSE A PROBATIONARY SENTENCE.
In the early morning hours of June 9, 2003, in Atlantic City, defendant became involved in an altercation with Nereida Perez. The dispute first erupted in Grabel's Bar, and the two women were physically violent toward each other. Perez was removed from the premises, and defendant went to the washroom to clean her face, which was bleeding. Defendant then left the bar and met Perez outside, where the two resumed their fight. In that fight, Perez received numerous cuts to her face and arms and along the back of her head. At trial, the circumstances surrounding their altercation were disputed, as was the identity of which woman first had possession of a knife. Both women were injured in the incident, Ms. Perez more seriously than defendant.
A friend drove defendant to Atlantic City Medical Center, but defendant recognized a friend of Ms. Perez's in the emergency room and decided not to go in. Defendant's friend then drove her to Shore Memorial Hospital. She left before seeing a doctor, however, because she learned that both the police and Ms. Perez's family members were looking for her. She stayed in a motel and then went to New York City, where she was treated at St. Luke's Hospital. She contacted a lawyer, who informed her that a warrant had been issued for her arrest.
She turned herself in to the police on June 12. On June 25, almost two weeks later, she returned to the police and sought to press charges against Ms. Perez. The record before us does not disclose what happened to those charges.
Defendant testified at her trial and maintained that Ms. Perez was the aggressor. She said that Ms. Perez had the knife initially and that she, i.e. defendant, got the weapon away from her. Defendant testified that she struck Ms. Perez only because "she was still coming at me. She was still trying to fight me, and I didn't know if she had something else in her hand."
During cross-examination, the following colloquy occurred:
Q: You went to the police station and turned yourself in, is that right?
Q: And then you left, is that right?
Q: Did you tell them -- did you tell anybody on that day what had happened to you?
Q: Did you tell anybody the next day what happened to you?
Q: What is that the 12th? So you didn't tell them on the 13th?
Q: How about the 14th?
A: I went to press charges on Perez.
Q: The 25th?
Q: 16 days later?
In summation, the prosecutor made the following statements:
Then she comes back, turns herself in. Does she tell them that day that she was viciously attacked? And I did count off the days because think about something, if you are viciously attacked and are scared for your life and you have to go into hiding for two[-]and[-]a-half days, don't you think you would tell them the day you were attacked? Would you wait 16 days, two[-]and[-]a-half weeks to go tell somebody that you've been hurt? She waits two[-]and[-]a-half days to go to the hospital, two[-]and[-]a-half weeks to give a statement. Makes no sense. Makes no sense at all.
Defendant's attorney made no objection during the cross-examination set forth above although the attorney did object to the prosecutor's remarks in summation. The trial court overruled the objection as well as defendant's subsequent motion for a mistrial.
One of the results of the principles articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), is the recognition that "every post-arrest silence is insolubly ambiguous," and that it would be "fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently given at trial." Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S.Ct. 2240, 2244-45, 49 L.Ed. 2d 91, 97-98 (1976).
Our Supreme Court has stated that "a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not." State v. Deatore, 70 N.J. 100, 115 (1976). The defendant in Deatore was convicted of armed robbery. Id. at 103. At trial, he asserted an alibi that he was elsewhere at the time of the incident. Id. at 103-04. On cross-examination, over the objections of defense counsel, the prosecutor asked the defendant questions involving "his silence and failure to voice exculpatory information to the police at or about the time of his arrest." Id. at 104, 107. The Court ruled that this attempt to impeach defendant with his silence violated his right against self-incrimination. The result, the Court noted, would be the same whether the defendant had received his Miranda warnings or had not. Id. at 117, n.10. A key factor in analyzing whether a defendant's silence may be used against him at trial is whether that silence took place before or after the defendant was arrested. Generally, the prosecution may use a defendant's pre-arrest silence to impeach the defendant's recitation of what occurred. State v. Brown, 118 N.J. 595, 615 (1990) ("Brown I") ("[E]vidence regarding pre-arrest silence is admissible if, when viewed objectively and neutrally in light of all circumstances, it generates an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant's apparent exculpatory testimony.").
State v. Lyle, 73 N.J. 403 (1977), arose in circumstances quite close to the present case. The defendant in that case was charged with murder, and at trial he asserted that he acted in self-defense. Id. at 405. According to the defendant, he shot the victim only when the victim attacked him with a screwdriver. Ibid. During cross-examination, the prosecutor asked the defendant about when he first mentioned the fact of an attack with a screwdriver to the police. Id. at 408. In addition, the prosecutor, on redirect examination, asked a detective whether, at the time the defendant was arrested, he had mentioned a screwdriver; the detective said no. Id. at 407 n.4. And in his summation, the prosecutor reminded the jury of the defendant's omission. Id. at 409.
The prosecutor's questions and comments all dealt with the defendant's post-arrest silence. Despite the absence of an objection to either the examination or the summation, the Court found plain error and reversed defendant's conviction. The Court concluded that because "it was manifestly improper to use defendant's silence to attack his self-defense theory as a fabrication," and because the defense was "at the very heart of the case," the actions of the prosecutor were "'of such a nature as to have been clearly capable of producing an unjust result.'" Id. at 410 (quoting R. 2:10-2; citing State v. Macon, 57 N.J. 325, 335-36 (1971); State v. Melvin, 65 N.J. 1, 18-19 (1974)).
Similarly here, self-defense was "at the very heart of the case," and the cross-examination at issue focused entirely on defendant's post-arrest silence. And in summation, the prosecution took the opportunity to remind the jury that defendant, following her arrest, did not, for almost two weeks, assert that Ms. Perez had been the aggressor.
The State argues that the prosecutor did no more than highlight a discrepancy between defendant's conduct after the fight and her assertion of self-defense at trial. In support of this position, the State points to State v. Brown, 190 N.J. 144 (2007) ("Brown II"). In our judgment, Brown does not support the State's position because it involved a defendant's pre-arrest silence. Here, as we have noted, we are dealing with a defendant's post-arrest silence.
The State also argues that the cross-examination and comments in summation should be viewed as dealing with a delay on defendant's part in pressing charges against Ms. Perez, rather than as a delay on her part in speaking to the police about what occurred. We consider this to be a distinction without any legal significance. Both the cross-examination and the summation referred explicitly to her failure to speak to the police following her arrest. That she later sought to press charges against Ms. Perez does not constitute a waiver of her right to remain silent. Lyle, supra, 73 N.J. at 408-10 (a defendant's post-arrest silence cannot be used even when the defendant speaks to the police at a later time).
Our Supreme Court had the occasion recently in a trilogy of cases to address the issue of whether a prosecutor may comment upon a defendant's silence for purposes of impeachment. Brown II, supra,; State v. Elkwisni, 190 N.J. 169 (2007), and State v. Tucker, 190 N.J. 183 (2007). Brown II is distinguishable from the present appeal because it dealt with a defendant's pre-arrest conduct, including silence; the Court ruled that a prosecutor may cross-examine a defendant on such silence for purposes of impeachment. Id. at 158-59.
We also consider Tucker distinguishable. In that case, the Court held that the prosecution properly pointed out to the jury certain inconsistencies between statements the defendant provided to the police after having been advised of his Miranda rights and having waived them. 190 N.J. at 190. The Court concluded that where a defendant "freely relate[s] different stories to the police," the prosecution is free to point out the inconsistencies in the defendant's statements. Ibid.
In our judgment, Elkwisni is closest to the subject appeal. The defendant was charged with participating in a robbery in a convenience store after he and a co-defendant were arrested in the store. 190 N.J. at 174. Defendant testified at trial that he had acted under duress from the co-defendant. Ibid. The prosecutor cross-examined the defendant about why he had not told this to police immediately when he was placed under arrest. Id. at 175.
The Supreme Court adopted the manner in which we framed the issue: "what are the limits of prosecutorial inquiry as to defendant's post-arrest silence, when defendant testifies at trial as to the substance of exculpatory statements he allegedly made at or near the time of his arrest." Id. at 178 (quoting State v. Elkwisni, 384 N.J. Super. 351, 370 (App. Div. 2006)).
The Court carefully reviewed the sequence of events and, in accordance with Tucker, said the prosecutor properly questioned the defendant about differences between his trial testimony and the voluntary statements he gave to the police. Id. at 179. The Court specifically noted, however, that it had "some reservation" about the prosecutor's cross-examination of the defendant regarding his silence at the scene.
At one point, the prosecutor asked defendant: "Isn't it true that you did not--when the police arrived, did you run to the--to the front door and say, thank God you're here, I'm a prisoner in this store?" Defense counsel's objection to this question was overruled. The prosecutor however, did not repeat that question. Instead, she asked several slightly different questions concerning defendant's conduct in the store at the time the police arrived. Defendant stated that he could not run to the door because [the co-defendant] was blocking his path and responded by inquiring, "how am I supposed to run past him?"
Id. at 180.
The Elkwisni Court adhered to the rule it had previously enunciated in State v. Muhammad, 182 N.J. 551, 573-74 (2005), that "in the absence of testimony by the defendant that he told the police what happened immediately upon his arrest, it [is] improper for the State to comment on his silence at the time they placed him under arrest." The Court, citing, Lyle, supra, considered it irrelevant that the defendant may later have chosen to speak to the police; it is, the Court said, "manifestly improper [for the prosecutor] to use defendant's silence to attack his self-defense theory as a fabrication." Id. at 180 (quoting Lyle, 73 N.J. at 410).
In Elkwisni, the Court deemed it harmless error in light of the fact that the comment was brief and only made once. Id. at 181. That, however, is clearly not the situation with which we are confronted. Here, the prosecutor's cross-examination of the defendant on her post-arrest silence was extensive and the prosecutor used that post-arrest silence against the defendant in summation.
We are unable to conclude that in the context of this matter, the error was harmless. The attack on defendant's credibility did have the capacity to lead the jury to a result it might otherwise not have reached. In light of this determination, we need not address the balance of defendant's contentions.
Defendant's convictions are reversed, and the matter is remanded to the trial court for a new trial.
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