On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-02-0280.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2008
Before Judges R. B. Coleman and Sabatino.
During his opening in defendant Allen McGee's robbery trial, the assistant prosecutor told the jury that defendant had made certain statements to store personnel at the crime scene. Neither of those alleged statements, which defendant denies making, were disclosed by the State during pre-trial discovery. Despite finding that one of the statements was "very prejudicial" to defendant and inadmissible, the trial court denied defense counsel's prompt motion for a mistrial. The court instead instructed the jury to disregard the prosecutor's comments. Given the court's finding of substantial prejudice, our lack of confidence that the court's limiting instruction sufficed here to ameliorate potential juror taint, and the fact that the trial had hardly begun when this problem arose, we are persuaded that the mistrial request should have been granted. Consequently, we vacate defendant's conviction and remand for a new trial.
The following chronology is relevant to our consideration of the issues raised on appeal. The case arises out of a failed attempt by defendant to shoplift two pairs of sneakers from a sporting goods store in West New York.
At about 2:15 p.m. on November 22, 2004, defendant was observed by Jorge Regal, an undercover security guard, entering the store. Defendant carried a knapsack*fn1 that appeared to Regal to be empty. Regal followed defendant, and saw him break off the security tag from a pair of sneakers. Defendant put the sneakers in his knapsack. He then went to the children's department, where Regal saw him detach the security tag from another pair of sneakers and likewise place them in the knapsack. Defendant then took a third pair of sneakers downstairs and placed them on the counter by the cashier. He then attempted to leave the store, clutching his knapsack.
Regal stopped defendant at the store's exit door after defendant had passed all points of sale. He showed defendant his identification as a store detective and asked to look inside the knapsack. At that point defendant, trying to get past, according to Regal, pushed him and struck him in the face. Regal called for help. The store manager, Daniel Semple, ran over and tried to restrain defendant. As the three men struggled, they passed into the store vestibule, where two other store employees, Daniel Campos and Lazaro Pena, joined in the fray.
Campos and Pena grabbed defendant and pulled him back towards the store interior. This maneuver caused Semple to crash into a glass window display. Campos, meanwhile, collided with another window.
Eventually, the store personnel were able to overcome defendant on the floor. Regal held both of his arms, pinning him to the floor with a knee. At that point, police officers arrived and placed defendant in handcuffs. His knapsack was opened, revealing the two pairs of sneakers without security tags.
Defendant was arrested and charged with robbery, N.J.S.A. 2C:15-1, criminal mischief, N.J.S.A. 2C:17-3(a)(1), and two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(7), against Regal and Semple, respectively. Defendant conceded that he had attempted to shoplift the sneakers. However, he denied that he had unlawfully injured the store employees, contending that he had acted in self-defense. Defense counsel challenged Regal's contention that his client had punched him, characterizing it instead as a shoving match in which defendant was out-numbered four to one. Thus, the trial turned on whether defendant had wrongfully used force against Regal and the other employees, or whether he had simply tried to defend himself.
In his opening statement to the jury, the assistant prosecutor previewed the sequence of events that he expected would be described by the State's witnesses. After explaining how Regal followed defendant around the store and observed him take the security tags off two pairs of sneakers, the assistant prosecutor told the jury:
He then goes to the kids section, he being the defendant, takes a kids pair of shoes, goes to the cashier, puts it on the ...