May 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE DANIELS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-2032.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Payne, Sapp-Peterson and Messano.
Defendant, Tyrone Daniels, who on August 30, 2004 robbed at gunpoint a cashier in the general cashiering office of Atlantic City's Taj Mahal casino, taking $74,836.75 in cash, was convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1, one count of first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1, one count of fourth-degree assault, N.J.S.A. 2C:12-1b(4), one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and one count of third-degree unlawful possession of a weapon, a gun, N.J.S.A. 2C:39-5b. The State's motion for an extended term was denied. However, defendant was sentenced to a custodial term of twenty years, subject to the eighty-five-percent period of parole disqualification required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN CO-DEFENDANT ROBERTSON TESTIFIED AS A STATE'S WITNESS DRESSED IN ORANGE PRISON GARB.
ADMISSION OF THE DEFENDANT'S "DOC" PHOTOGRAPH INTO EVIDENCE, IN CONJUNCTION WITH DETECTIVE SMITH'S TESTIMONY THAT HE "KNEW" A PERSON CALLED "CREAM," MADE IT NECESSARY FOR THE TRIAL COURT TO GIVE SUA SPONTE THE MODEL JURY CHARGE ON POLICE PHOTOGRAPHS. (Not Raised Below).
PERMITTING MS. ROBERTSON TO TESTIFY THAT SHE COOPERATED WITH THE DEFENDANT BECAUSE SHE WAS AFRAID OF HIM CONSTITUTED PLAIN ERROR. (Not Raised Below).
THE PROSECUTOR'S PROFFER CONSTITUTED A MISREPRESENTATION BECAUSE THE PROSECUTOR USED THE EVIDENCE AS OTHER BAD ACTS EVIDENCE TO SHOW CRIMINAL PROPENSITY. (Not Raised Below).
THE TRIAL COURT'S FAILURE TO GIVE THE JURY A LIMITING INSTRUCTION RESULTED IN PLAIN ERROR.
THE AGGREGATE 20 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL DISCRETION.
Following consideration of the record and legal arguments of counsel, we reverse.
The facts adduced at trial demonstrated that Margaret Robertson, a girlfriend of defendant, was employed by the Taj Mahal casino as a cashier. Several days before the robbery, at defendant's request, Robertson had taken a magnetic access card to the casino's cashiers office issued to another cashier. Robertson then gave the card to defendant for his use in committing the crime. After the robbery had occurred, Robertson was quickly identified as the person who stole the access card. Upon her arrest, Robertson agreed to cooperate with the police, and she identified defendant, whom she knew by the street name "Cream," as the perpetrator of the armed robbery. The police searched the house where defendant resided pursuant to a warrant and found, in a dresser drawer, $39,400 of the proceeds of the robbery, wrapped in the manner specified by the casino's cashier. Defendant was then arrested. He and Robertson were indicted together as co-defendants.
Prior to trial, Robertson entered a plea of guilty to conspiracy to commit robbery and agreed to testify against defendant at trial, in exchange for the State's promise to recommend that her custodial sentence not exceed seven years, subject to NERA. On appeal, defendant claims that his right to a fair trial was prejudiced by the appearance before the jury of Robertson, as a witness for the State, dressed in prison orange. Although defense counsel did not object to Robertson's attire at trial, the issue was raised in a post-trial motion for a new trial that followed issuance of our opinion in State v. Russell, 384 N.J. Super. 586 (App. Div. 2006).
In Russell, we reversed the defendant's robbery, burglary, and other convictions and ordered a new trial when his co-defendant, appearing as a witness for the State pursuant to a plea agreement, was required over the objection of defense counsel to testify in handcuffs, leg shackles and prison garb, despite the non-existence of any evidentiary record establishing security concerns. The present matter differs from Russell, since no objection to Robertson's appearance was raised at trial, and Robertson was not restrained, but merely wore prison clothing. While we conclude that it would have been better had Robertson been dressed as a civilian, we find no plain error in her appearance in prison orange in light of defense counsel's emphasis in cross-examination and closing argument on Robertson's prior plea of guilty as a co-defendant in the indictment being tried, on her continued custodial status, and on the likelihood that her allegedly incredible testimony was motivated only by a desire to shorten the term of her sentence.
Defendant additionally claims error in the admission of other crimes evidence on defendant's part through the testimony of Robertson, consisting of defendant's act of rubbing a gun barrel between her legs to awaken her in the middle of the night and of uttering terroristic threats, on the ground that the testimony was relevant to bolster Robertson's credibility, in violation of State v. Darby, 174 N.J. 509 (2002).
In this case, the balancing analysis required by State v. Cofield, 127 N.J. 328, 338 (1992),*fn1 was not conducted by the trial judge. As a consequence, we review the admissibility of the prior bad acts testimony on a plenary basis. State v. Lykes, 192 N.J. 519, 534 (2007).
As the Court stated in Lykes,
The general rule concerning the inadmissibility of "prior bad acts" or "other crimes" evidence is codified in N.J.R.E. 404(b), which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." That Rule, however, goes on to explain that "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Thus, unless relevant under one of the exceptions of Rule 404(b), the prior bad acts or other-crimes evidence is simply inadmissible. Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. [Id. at 534-35.]
The statement given by Robertson to the police in this case indicated that she had facilitated defendant's robbery at the casino by describing the procedures utilized in its cashier's office to bundle the day's receipts and arrange for their deposit, by detailing the lay-out of the office and location of the money, and by procuring for him a co-worker's magnetic entry card. In doing so, Robertson, a forty-year-old mother of six with three grandchildren, jeopardized her five-year period of employment at the casino, as well as her own personal freedom. Although Robertson claimed only to have a casual, sexual relationship with defendant and alleged no expectation of sharing in the proceeds of the robbery, she asserted in her statement and at the time of her plea that she had participated in the lead-up to the robbery out of fear.
Prior to jury selection, defense counsel noted to the court that in Robertson's taped statement and during her allocution and her plea, she mentioned "being like afraid," intimidated or threatened by defendant, and counsel sought to bar such testimony at trial. The prosecutor opposed defense counsel's application, stating:
Well, I think it's actually very relevant testimony, Your Honor. I think it explains the reason for her actions and it goes to her credibility as to why she . . . is testifying, why she did what she did.
The Court agreed with the prosecutor, ruling:
Yeah. . . . [I]t really does. I mean, it's almost - it's almost part of the - I hate to say it's part of the res gestae because it's going to her state of mind, but it really is. I mean, it really is part and parcel. And I'm not saying it's true.
That's her position. And certainly you'd have a right to explore the genuineness, if you will, because that could be her way of just - it could've been her idea to begin with and she blames it on him or maybe he had nothing to do with it altogether and she's blaming him and it was some other boyfriend or something. I don't know.
But that's her position and it really is part and parcel of her motivation, if you will. So I don't think that I could rule that the prosecutor couldn't touch upon it.
Because . . . it is so relevant and probative. But certainly the genuineness of it, the accuracy of it is challengeable.
At trial, Robertson testified that she knew defendant possessed a gun, because "one night" he woke her up by entering Robertson's residence without her knowledge and placing a cold gun between her legs. Later in her direct examination, the prosecutor asked Robertson: "Margaret, why did you participate in this plan with the defendant?" Defense counsel objected on the ground of relevance, to which the prosecutor replied: "Well, obviously I think it does [have relevance] because it goes to her motivation as to what she did and it goes to her credibility as to why she's here now doing this." The trial judge agreed with the prosecutor's latter argument, stating: "I think it definitely goes to her credibility and her credibility is an issue."
As a result, the following testimony was presented to the jury:
Q: Margaret, why did you participate? Why did you do what you did?
A: Because I was afraid not to do what I did. I thought that if I didn't, that he would hurt me and my kids.
Q: Did he ever say anything to make you believe that?
A: Yes. Sometimes he did say that he would - he would say when we'd go riding, we'd be on the dark roads, it would be at night and it'd be dark roads and he would say things like you could be missing out here and nobody would ever find your body. He said that he was God, he knew everything. And even that night when I woke up with the sensation of him waking me up with running the gun between my legs, I was convinced that he could get inside, he could get to me any time he felt like it.
Q: Were you concerned for the rest of your family?
Robertson offered no evidence of any sort of direct threat by defendant designed to compel her participation in the robbery, and she did not specify when the act and statements that she characterized as threatening took place.
While defendant contends that admission of this testimony constituted reversible error, the State disagrees, arguing:
The testimony of Margaret Robertson, which was for the jury to believe or disbelieve, was directly relevant to Robertson's credibility and the crime which defendant and Robertson committed together.
That Robertson felt threatened by defendant helped explain why she gave defendant important information, including how the money was packaged, where it was stored and how to gain access to the general cashier office, without any promise of a portion of the proceeds. Robertson's testimony also explains why a single mother of six would steal a co-worker's sledge [magnetic card] only to give it to defendant and thus jeopardize her stable job at the Taj Mahal. Robertson's actions are especially baffling considering that Robertson did not consider defendant her boyfriend and described her relationship with him as being almost merely sexual. The trial court correctly noted that the evidence that Robertson felt threatened by defendant was directly related to her credibility, which was in issue at trial.
However, as defendant has argued, in Darby, an appeal from a conviction for robbery, the Court held that the introduction of other-crime evidence regarding the defendant's participation in a second robbery for the sole purpose of bolstering the credibility of a critical prosecution witness, who claimed to have participated with the defendant in both robberies and testified pursuant to a plea agreement, was reversible error. 174 N.J. at 513. In reaching this conclusion, the Court noted that N.J.R.E. 404(b) was a rule of exclusion and, consistent with that view, "ordinarily other-crime evidence should not be admitted simply to bolster the credibility of a witness." Id. at 520. As the Court then observed: "If other-crime evidence is admissible merely to support the credibility of a witness, then the Cofield standard designed to severely limit the use of such highly inflammatory evidence becomes meaningless." Id. at 521. Because we can find no meaningful distinction between the testimony given by Robertson and the testimony deemed erroneously admitted in Darby, we agree with defendant that the admission of Robertson's other crime testimony constituted reversible error in this case.*fn2
Further, we disagree with the State's position that the "exchanges between defendant and Robertson did not comprise 'other crimes' evidence" because they were a part of the res gestae of the crime. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). As we stated in Cherry: "Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." Ibid. However, the evidence offered by Robertson of unconnected acts and terroristic threats, occurring at an unspecified time and without any articulated objective, does not serve this stated purpose, and in fact is irrelevant to the criminal culpability of defendant - the only issue before the jury. Thus, the evidence does not fall within the res gestae of the charged crime. Compare State v. Pierro, 355 N.J. Super. 109, 118-19 (App. Div. 2002) (in trial of consecutive burglaries, evidence of the first crime, found on defendant after the second crime, deemed admissible in both), certif. denied, 175 N.J. 434 (2003); State v. Byard, 328 N.J. Super. 106, 108-12 (App. Div.) (permitting evidence of earlier failed arson in trial for subsequent aggravated arson), certif. denied, 165 N.J. 490 (2000).
As a final matter, we find the evidence inadmissible as a hearsay statement by a co-conspirator in furtherance of and during the course of the conspiracy. State v. Savage, 172 N.J. 374, 402 (2002); State v. Phelps, 96 N.J. 500, 508-10 (1984); Cherry, supra, 289 N.J. Super. 521-24; N.J.R.E. 803(b)(5).
There is nothing in the record to support the conclusion that defendant's acts and statements occurred contemporaneously with the plan to rob the casino, that they occurred in an effort to compel Robertson's continued compliance with that plan, or that they otherwise furthered the proposed endeavor. Indeed, the evidence, proffered by Robertson following her arrest, appears to be of the blame-deflecting sort that we found to be inadmissible in State v. Rivera, 351 N.J. Super. 93, 107 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003).
As a consequence, we reverse defendant's conviction and remand the matter for a new trial. In light of our resolution of the other crimes issue, we need not address the remainder of the arguments raised by defendant in this appeal.
Reversed and remanded for a new trial.