January 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS TAY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey Law Division, Bergen County, Indictment No. 05-01-0146.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2007
Before Judges Fuentes and Grall.
Defendant Carlos Tay was tried before a jury and convicted of one count of first-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to fifteen years imprisonment, subject to an eighty-five percent parole ineligibility period and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse the conviction and remand this matter for a new trial.
We gather the following facts from the evidence presented at trial. On September 27, 2004, at approximately 2:30 a.m., Rafael Jimenez, a taxi driver based in Union City, responded to a call from his base to pick up two fares. One fare was one man; the other fare consisted of two men and a woman. The man sat in the front seat of the cab, and the other three occupants sat in the backseat, with the woman sitting in the middle.
Jimenez later identified defendant as the man sitting to the right of the woman. Jimenez testified to smelling alcohol coming from the man sitting directly behind him.
Jimenez dropped off the front seat passenger first.
Thereafter, the three backseat passengers asked Jimenez to stop within one block of that location. At that point, the man on the right, whom Jimenez identified in court as the defendant, said to the man on the left "let's get him down." The woman allegedly said "no, leave him alone," and told defendant to get out of the cab.
The man and woman left the cab after paying Jimenez the appropriate fare. By contrast, defendant told Jimenez to get out of the cab because "he was not going to pay [him] anything."
At this point, Jimenez saw defendant take a knife out of his pocket; defendant placed the weapon in contact with Jimenez's body causing him pain. Inexplicably, defendant then "took off running down."
In response, Jimenez placed the cab in reverse, and signaled a passing police car that was driven by Officer Dingertopadre. Jimenez told Dingertopadre that he had just been held at knifepoint. He described his assailant as a Hispanic man wearing a sports shirt over a white t-shirt. This description matched a man Dingertopadre had just seen in front of a pizzeria two blocks south of where Jimenez had flagged the officer down.
Approximately five minutes after Dingertopadre had radioed this information to police headquarters, Officer Hartman reported finding a person matching the description. The man Hartman found was a Hispanic male wearing a blue basketball jersey; no weapons were found on his person. In court, Hartman identified the defendant as the man he had detained.
Defendant was placed inside the marked police car; when questioned, defendant said he had just been with his cousins, and brought Hartman to his cousins' house. Dingertopadre also took Jimenez to defendant's cousins' home to make an identification.
Jimenez identified defendant as the man who had held him at knifepoint. He also identified defendant's cousin as being the other man who had been in the cab with him. By that point, Officer Rivas, who spoke Spanish, arrived at defendant's cousin's house. Rivas spoke with defendant in Hartman's police car, where, according to Rivas, defendant admitted, in Spanish, that he had been in Jimenez's taxi cab that night, and had just returned home from a party. Hartman placed defendant under arrest and transported him to the Bergen County Jail. The knife that defendant allegedly used on Jimenez was never found.
Defendant was not administered any of the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), before he made any of these statements.
At trial, the State presented the testimony of the alleged victim, and the three police officers involved in the investigation and subsequent arrest. The following colloquy ensued with respect to the testimony offered by Officer Rivas.
[PROSECUTOR]: Do you remember what [Jimenez] specifically said?
A: He said that's the S O B who tried to rob me.
[PROSECUTOR]: What's the next thing that happened?
A: We asked the party in the back of the vehicle, the suspect what happened.
He said that, you know, he admitted he was in the cab, and that he had just gone home from a party. He told us that the cab driver dropped them off.
[DEFENSE ATTORNEY]: Objection. Objection. I'd like to be heard at side bar.
THE COURT: All right.
[Side Bar Discussion]
[DEFENSE ATTORNEY]: Judge, my objection is this: This witness is testifying from a statement that he was provided with by my client. I was never apprised of the statement. Had I been apprised of the statement I would have done the Miranda hearing.
The, all of the reports say that my client said that he was with the cousin. That's all the reports say. That's all they say. It's absolutely a surprise.
[PROSECUTOR]: That's about, what he's about to say.
[DEFENSE ATTORNEY]: No.
[PROSECUTOR]: They were coming back from the party, but he was with his cousins.
[DEFENSE ATTORNEY]: There's nothing in the report.
THE COURT: That he was in the cab?
[DEFENSE ATTORNEY]: That he was at a party, or he was in a cab, or he was with the cousins. That's all the officer testified to. He was with the cousins.
THE COURT: I think I heard that he was coming from a party. But we didn't hear before he was in the cab.
[DEFENSE ATTORNEY]: We did before that he was coming from the party. Before he was in the cab. I had - -
[PROSECUTOR]: I'll go right to the cousins.
[DEFENSE ATTORNEY]: I would have asked for a Miranda hearing.
First of all, I am surprised by that. I should ask for a mistrial. Instead of that I will ask that the whole thing be stricken, and the jury be given a curative instruction.
THE COURT: He's not entitled to the Miranda hearing. He never asked for one.
He was in the police car at that point.
[DEFENSE COUNSEL]: Yes. He was brought to the scene to be identified. It was somewhere around that time that he said that.
THE COURT: We don't know.
[PROSECUTOR]: It's in all of the police reports that he was with the cousins, and then he pointed out, he led the police officer to the cousin's house, and said I was with the cousin.
[DEFENSE COUNSEL]: No. This officer is testifying that he told them he was coming from a party. He was in the cab. All information that we never were provided with before.
In response to defense counsel's concerns, the trial court directed counsel to present argument as to how it should proceed. After hearing argument from counsel the following day, the trial court found that: (1) defense counsel was surprised by the testimony of Officer Rivas; (2) the State's failure to apprise defense counsel, before trial, of this aspect of Rivas's testimony violated its discovery obligation under R. 3:13-3; (3) the statement attributable to defendant by Rivas was the product of a custodial interrogation; (4) defendant was not given Miranda warnings before he was questioned by Rivas; and (5) under these circumstances, the statement would have been ruled inadmissible under both Miranda, and as a sanction for the discovery violation.
Notwithstanding these findings, the court denied defense counsel's motion for a mistrial, deciding instead to provide the jury with the following limiting instructions.
I'm going to give you an instruction, what we call a limiting instruction.
Yesterday you heard testimony . . . from [Officer Rivas] concerning statements allegedly made by Carlos Tay, the defendant. This testimony must be disregarded by you and must not be considered in any way during your deliberations or instructions. . . . You heard the statements that somebody, that the officer said were made, and just those statements. His other testimony you consider such weight as you wish. But statements where he said somebody said must be absolutely disregarded by you and not ever raised during your discussion and deliberation.
Defendant did not call any witnesses in his own defense.
Against this factual backdrop, defendant now appeals raising the following arguments.
THE TRIAL COURT SHOULD HAVE DECLARED A MISTRIAL WHEN STATE'S WITNESS VIOLATED DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION WITH SURPRISING INCRIMINATORY TESTIMONY NOT INCLUDED IN DISCOVERY, IN VIOLATION OF U.S. CONST. AMEND. V, XIV, N.J. CONST., ART. I, SECTION 1, 7 AND 10, AND R. 3:13-*fn1 .
A. THE TRIAL COURT SHOULD HAVE DECLARED A MISTRIAL WHEN STATE'S WITNESS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION.
DEFENDANT'S SENTENCE IS ILLEGAL AND MANIFESTELY EXCESSIVE AS THE SENTENCING COURT FAILED CORRECTLY TO APPLY AND WEIGH ALL RELEVANT FACTORS.
THE STATE FAILED TO MEET ITS BURDEN OF PROVING EVERY ELEMENT OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT.
We agree with defendant as to Point I and reverse. As the trial court itself recognized, the statements attributable to defendant by Officer Rivas would have been declared inadmissible as a violation of defendant's rights under Miranda. This tainted evidence was presented to the jury only because defense counsel was not apprised of its existence before the commencement of the trial, in clear violation of the State's discovery obligations under R. 3:13-3.
The "limiting" jury instruction given by the court in lieu of granting defendant's mistrial motion was patently inadequate to counteract the prejudice caused by Rivas's testimony. State v. Winter, 96 N.J. 640, 647 (1984). Errors of constitutional magnitude are poor candidates for the limited relief afforded by a curative instruction, because such errors are capable of leading the jury to a result it might not have otherwise reached. Ibid.
We have been particularly sensitive to issues concerning an admission against interest by a defendant.
[T]he defendant's own confession is probably the most probative and damaging evidence that can be admitted against him. . . .
[T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.
[State v. Pillar, 359 N.J. Super. 249, 279-80 (quoting Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 1257, 113 L.Ed. 2d 302, 322 (1991) (internal citations and quotations omitted)).]
This prejudice could have been easily avoided had the State complied with its discovery obligations under R. 3:13-3. Under these circumstances, the only course of action available to the trial court was to grant defendant's motion for a mistrial.
Reversed and remanded for a new trial.