On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0593.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2008
Before Judges Cuff and Fisher.
Following a jury trial, defendant Gerald C. Smith was convicted of fourth degree theft by unlawful taking in the amount of $200 to $500, contrary to N.J.S.A. 2C:20-3. He was acquitted of third degree burglary. Following denial of his motion for a new trial, defendant was sentenced to a term of eighteen months imprisonment. The appropriate assessments and penalties were also imposed.
The evidence adduced by the State reveals that defendant walked through a neighborhood in Union offering to perform yard work or other chores at various homes. A resident called the police, an officer responded and observed defendant carrying a leaf blower. The officer stopped defendant and soon learned that there were several outstanding arrest warrants for defendant. Defendant was arrested based on those warrants and later charged with burglary and theft of the leaf blower.
At trial, the State advised the trial judge that it intended to comment in its opening statement and to question the arresting officer that defendant had been arrested due to outstanding arrest warrants. In response to an inquiry by the trial judge, defense counsel advised that she had no objection to a reference by the State in its opening statement or to an inquiry to the arresting officer that defendant was arrested on an outstanding warrant as long as the jury received the limiting instruction suggested by the trial judge. He had stated that he would advise the jury that the warrants were for traffic violations and that the jury was not to consider the circumstances of his arrest in their deliberations.
The State referred to the circumstances of the arrest in its opening statement and questioned the arresting officer about the existence of the warrants and defendant's arrest. As soon as the assistant prosecutor referred to the outstanding warrants, the trial judge delivered the limiting instruction he outlined prior to the commencement of trial. The trial judge repeated the limiting instruction during the testimony of the arresting officer. Defendant offered no objection at either time.
On appeal, defendant raises the following issue:
THE ADMISSION OF IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF OTHER BAD ACTS COMMITTED BY THE DEFENDANT, WITHOUT ANY MEANINGFUL LIMITING INSTRUCTION BY THE COURT, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (Not Raised Below).
Defendant's argument that the trial judge allowed admission of irrelevant and highly prejudicial evidence of other bad acts is evaluated in accordance with the plain error standard. We will set aside the verdict only if this admittedly irrelevant information was "clearly capable of producing an unjust result."
R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). Defendant's acquiescence in the admission of this evidence does not foreclose appellate review, but we will apply the plain error standard. State v. Shomo, 129 N.J. 248, 260 (1992); State v. Walkings, 388 N.J. Super. 149, 154 (App. Div. 2006).
Defendant correctly notes that the existence of outstanding arrest warrants for traffic violations provided no relevant evidence to the jury on either charge. Our review of this trial record, however, demonstrates that the jury was not misled by the admission of this evidence. The jury asked for a clarification of a portion of the theft charge that requires a defendant to exercise unlawful control over movable property. Then, the jury acquitted defendant of the burglary charge. In other words, the jury did not allow the admittedly irrelevant evidence of the outstanding warrants to preclude a ...