November 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADRIEL LOPEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-01-0076I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 16, 2008
Before Judges Lihotz and Messano.
On January 13, 2005, a Burlington County Grand Jury returned Indictment No. 05-01-0076-I, charging defendant Adriel Lopez and co-defendant Keith D. Cole (Cole), with second-degree burglary, N.J.S.A. 2C:18-2b(2) (count one), two counts of third- degree theft by unlawful taking, N.J.S.A. 2C:20-3a (counts two and three), third-degree burglary, N.J.S.A. 2C:18-2a(1) (count four), and first-degree employing a juvenile in the commission of a crime, N.J.S.A. 2C:24-9a (count five).
Following a jury trial, defendant was convicted of second-degree burglary (count one), and third-degree theft by unlawful taking (count two). The jury acquitted defendant of the remaining charges. Defendant was sentenced on April 13, 2007. On count one the court imposed three years incarceration with a three-year period of parole ineligibility, pursuant to the Grave's Act, N.J.S.A. 2C:43-6(c), and on count two a concurrent three-year flat sentence.*fn1
Defendant presents the following issues for our consideration:
POINT I. STATE FAILED TO PROVIDE DISCOVERY
A. PHOTOGRAPHS FROM BANK SURVEILLANCE
B. PHOTOGRAPH OF ID
C. EVIDENCE LOG
D. COIN TRANSACTION RECEIPT
POINT II. CO-DEFENDANT'S COUNSEL FAILED TO PROVIDE PRETRIAL DISCOVERY DISCLOSURE OF THE STATEMENTS OF WITNESSES.
POINT III. THE TRIAL COURT ERRED BY ALLOWING THE STATE'S WITNESS TO TESTIFY TO HEARSAY.
POINT IV. THE TRIAL COURT ERRED BY ALLOWING THE STATE'S WITNESS TO TESTIFY IMPROPERLY TO THE CREDIBILITY OF THE WITNESS.
POINT V. PREJUDICIAL JOINDER OF DEFENDANTS.
POINT VI. VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION.
We are not persuaded by defendant's arguments, and, therefore, affirm.
We recite the facts surrounding the burglaries as presented by the State at trial. On May 12, 2004, the Pemberton Township Police Department commenced an investigation of two home burglary complaints. One victim told police she believed a minor, B.S., was in possession of jewelry taken from her home. The next morning, police went to the Burlington County Institute of Technology to talk with fourteen year-old B.S.
B.S. knew she "was caught" and "spilled everything" to police. B.S. told police defendant and Cole picked her up from the bus stop and the three drove to a grocery store, where either Cole or defendant purchased latex gloves. The three then drove to the Powells' residence on Seminole Trail in Pemberton Township. Cole and defendant parked the car and knocked on the door of the residence. After no one answered, Cole moved the car. Cole and defendant exited the vehicle, leaving B.S. inside. Cole and defendant returned to the Powells' home and were gone for a half hour. Cole and defendant then reappeared at the car, and drove to a street behind the Powells' home and parked. Cole and defendant climbed over a fence to enter the Powells' yard. Defendant asked B.S. to help remove three bags sitting by the fence and place them in the car. The bags contained cameras, prescription medication, coins and a lock box.
Next, the group drove to the Farmer's & Mechanics Bank (the Bank), to use the Bank's coin machine and exchange the coins found in the lock box for paper currency. While defendant used the coin counting machine, Cole sold certain silver dollars to a teller as they were rejected by the coin machine. Cole and defendant split approximately $660 that they received.
The three returned to the residential development, this time stopping at a different residence belonging to the Christophers. Cole and defendant exited the vehicle while B.S. remained in the car. The two went to the rear of the house. Approximately twenty minutes later, Cole returned. After he entered the car, B.S. saw he had a gun and an ammunition clip. Cole drove around the block and met defendant who was waiting at the rear of the Christophers' residence. After he entered the car, B.S. saw defendant also had a gun, two ammunition clips, a laptop computer and jewelry. Defendant gave B.S. "a ring and two belly button rings."
The three drove to Mount Misery and walked into the woods. Cole fired the guns "one at a time, into a tree." Stopping at another wooded area, Cole and defendant threw the lockbox away, hid the other items in the trunk of Cole's car and then returned to Cole's house.
Defendant raises numerous instances of alleged error warranting a new trial. We will address the issues in the order in which they are presented.
First, defendant argues he was prejudiced because the State improperly withheld the following four items of discovery: (1) three still photographs taken from the Bank's surveillance tape showing Cole, defendant, and B.S. at the Bank on May 13, 2004; (2) a photograph of the contents seized from Cole's automobile on May 14, 2004, which included defendant's identification card, however, the actual identification card was not produced; (3) a revised police evidence log referenced by the detective during his trial testimony; and (4) the Bank transaction receipt regarding the coin exchange.
We treat a trial court's decision to admit evidence with deference and review that court's decision under the abuse of discretion standard. State v. Fortin, 178 N.J. 540, 591 (2004). We will only disturb a trial court's evidentiary rulings when "a 'clear error of judgment' is established." State v. Loftin, 146 N.J. 295, 357 (1996) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)).
Relevant to defendant's arguments is Rule 3:13-3(b), which governs the reciprocal post-indictment discovery obligations in criminal cases. Subpart (c) of the Rule grants a defendant the right to inspect and copy other evidence as obtained by the prosecutor. R. 3:13-3(c). "If evidence favorable to the defendant has been suppressed by the State and that evidence is likely to have affected the verdict, a conviction cannot stand." State v. Reddish, 181 N.J. 553, 639-40 (2004).
The Bank photographs (S-1 to S-3) were marked during the direct examination of B.S. A sidebar discussion made clear the photographs were taken from a compact disc disclosed in original discovery and the actual pictures were presented to defense counsel the day before. No suggestion is proffered that the defense was unaware of the existence of the surveillance video or the State's intention to utilize it.
Defendant withdrew his discovery violation objection but continued to object to the witness's identification of one of the three Bank photographs (S-2). The court overruled the objection and permitted B.S. to identify defendant, Cole and herself in the picture. During cross-examination, defendant requested the three Bank photographs be admitted into evidence. Noting the photographs were the State's exhibits, the court granted the State's request for admission because there was no objection.
"Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). "This general principle does not foreclose reversal; rather, the question is whether 'the particular error . . . cut mortally into the substantive rights of the defendant[.]'" State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting Harper, supra, 128 N.J. Super. at 277).
Applying this test, we are thoroughly convinced that the admission of the photographs did not impair defendant's defense. Further, we do not find plain error warranting reversal. Ibid.
A fourth photograph was offered by the State that depicted the contents seized from Cole's automobile. The photograph included the front of what was stated to be defendant's identification card (S-4). We consider this challenge with the related issue regarding the evidence log. Additional facts are necessary to provide context.
During trial, Detective Brian Wechkus identified S-4 and, at one point, mentioned he found a foreign coin inside the vehicle which was shown in S-4. Ultimately, the trial judge denied admission of S-4 based upon authentication issues. See N.J.R.E. 1002 ("to prove the content of a writing or photograph, the original writing or photograph is required"). The court excluded the proposed evidence not because of an alleged discovery violation, but because the original identification card was not produced (only a photocopy was provided) and thus, authentication was at issue.
However, the trial judge permitted Detective Wechkus to list the items recovered following the automobile search. To do this, Detective Wechkus referred to a report he had prepared entitled "Vehicle/Property Description Report" (DL-1). See N.J.R.E. 803(c)(5). DL-1 had been provided to the defense the weekend prior to the trial's commencement. Item twelve on that document was the defendant's identification card. DL-1 was neither offered nor intended for admission into evidence, but was used by Detective Wechkus solely to aid his recollection.
Another document was marked for identification as S-37. This was the detective's evidence report, which had been provided to the defense in discovery. The evidence report did not include the identification card in question.
Defendant identified this discrepancy and raised an objection based on Rule 3:13-3(b). Also, defendant argued the difference in the two documents showed a "break in the chain of custody." The judge denied the objections stating:
The bottom line is all of this is, that the officer testified as to the things that he found in the car. And he testified that he found the identification of Mr. Lopez. Whether it appears on one document and doesn't appear on the other, goes really more to the weight to be given to that piece of item - - of evidence than to its admissibility and goes to the credibility of this officer, which certainly can be argued why it's on one report and why it's not on the other report.
On appeal, defendant argues that all mention of the identification card should have been stricken from the record. He suggests the court erred by permitting Detective Wechkus to include the identification card in the list of items seized from Cole's car, and by allowing the prosecutor to reference the identification card in summation.*fn2 These requests were not made below.
Our review of defendant's contentions is one of plain error. "[W]e will not reverse unless the error was 'clearly capable of producing an unjust result.'" State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (quoting R. 2:10-2), certif. denied, 188 N.J. 489 (2006); State v. Jenkins, 178 N.J. 347, 361 (2004). Not any possibility of an unjust result is sufficient. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
The testimony of both B.S. and Cole placed defendant in the car. Defendant's wife testified she was with him on May 13, 2004. The jury weighed the credibility of each witness. It would have been preferable to exclude all mention of the identification card once the trial court concluded it could not be authenticated. Nevertheless, we reject defendant's request for retrial because any error in permitting the detective's mention of, or the summation reference to, the identification card was not "capable of producing an unjust result." R. 2:10-2.
Also, we discern no prejudice resulted from the disparity between DL-1 and S-27. Through cross-examination, defendant was afforded every opportunity to test the credibility of Detective Wechkus by challenging the search methods and/or the preparation of the two documents. We conclude no prejudice occurred warranting our intervention.
We have considered the submissions of both parties in light of the record and applicable law, and we find the arguments advanced by defendant regarding the coin transaction receipt are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Next, we address whether co-defendant Cole committed a discovery violation in failing to provide a statement from his witness. Defendant argued before the trial judge, as he does on appeal, that the requirements of Rule 3:13-3(d)(3) imposed an affirmative obligation on a co-defendant to prepare and provide a written summary of the witness's testimony once a witness is interviewed. We disagree.
Rule 3:13-3 states:
(d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material . . .
(3) names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements;
During the week leading up to trial, Cole disclosed to the State and defendant his intention to call Michael Lathers as a witness. The court questioned Cole's counsel and was advised that no written statement or memorandum of Lathers's proffered testimony was prepared. An oral proffer was then provided. The trial judge concluded no obligation to reduce an oral statement to writing existed and defendant had the opportunity to inquire as to the proposed testimony or otherwise seek judicial intervention.
The Rule, as implemented by our trial courts, is designed to avoid surprise and to provide both the State and the defense a fair opportunity to prepare for trial. State v. Burnett, 198 N.J. Super. 53, 60 (App. Div. 1984), certif. denied, 101 N.J. 269 (1985). In its current application, we discern nothing that offends common notions of fundamental fairness or recognized principles of due process. While Rule 3:13-3(d) requires disclosure of the identifying information of all witnesses a defendant proposes to call at trial, it imposed no affirmative obligation to reduce a witness's oral statements to writing. We decline to endorse such an expansion, as it would add additional burdens on defense counsel and because existing adequate means of discovering counsel's proffer of a proposed witness's testimony are available.
Defendant raises two challenges regarding Detective Wechkus testimony: (1) the court allowed Detective Wechkus to repeat B.S.'s statements, which were impermissible hearsay; (2) Detective Wechkus testified as to B.S.'s credibility.
During his direct testimony Detective Wechkus was asked about the content of B.S.'s initial statement. Defendant's objection was overruled.*fn3 Detective Wechkus recited the facts he recorded when he first spoke to B.S., which mirrored the testimony she had already provided. At one point, Detective Wechkus mentioned a fact not recited by B.S. Co-defendant's objection was sustained and a curative instruction was immediately given.
"It is well-settled that a police officer may, without violating either the hearsay rule or defendant's right of confrontation, explain the reasons he either apprehended a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Vandeweaghe, 351 N.J. Super. 467, 484 (App. Div. 2002) (quoting State v. Bankston, 63 N.J. 263, 268 (1973). The testimony is admissible to explain the officer's subsequent conduct. Ibid. Generally, the court should not permit a police officer to provide specific testimony regarding what another told him. Bankston, supra, 63 N.J. at 271.
We conclude Detective Wechkus' testimony exceeded the permissible scope of admissible hearsay designed to explain the reason the police approached Cole and defendant or went to the Bank or Mount Misery. The hearsay nature of the testimony is not cured by the fact that B.S. testified. However, we are not persuaded that the impropriety warrants a reversal of defendant's conviction.
Detective Wechkus essentially repeated B.S.'s taped statement. That statement was available to the defense and was not a surprise. B.S. appeared and testified. She was subject to diligent cross-examination, including areas of inconsistency between her statement and her trial testimony. Overall, in the context of the whole trial, considering the testimony of the state's witnesses, the testimony of co-defendant and Lathers, and the other evidence presented proof of defendant's guilt was overwhelming.
We reject the implication sought to be drawn by defendant that Detective Wechkus bolstered B.S.'s credibility. Detective Wechkus explained the decision not to charge B.S. for her actions in the burglaries and included his perception of B.S.'s involvement. Our review discerns the testimony was not impermissible.
On appeal, defendant suggests for the first time that he should have been tried separately from Coles. R. 3:7-7. No severance motion was presented to the trial court. R. 3:15-2(b). Generally, a defendant must raise the issue of severance by motion before trial, otherwise, the defense is waived. R. 3:15-2(c); R. 3:10-2(c).
Separate trials are required when defendants' "defenses are antagonistic and mutually exclusive or irreconcilable," but not "[i]f the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely." State v. Brown, 118 N.J. 595, 605-06 (1990). We discern no prejudice to defendant requiring severance.
Finally, suggesting he suffered a violation of his constitutional right of confrontation, defendant challenges the trial judge's exercise of discretion in limiting specific areas of cross-examination of co-defendant's witness, his mother Thelma Cole. See U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. Defendant was not precluded from conducting a spirited cross-examination. Despite defendant's argument, the record reflects defendant was allowed a wide-latitude of inquiry that exceeded the scope of the witness's direct examination. The court's ruling prohibited an attempt to elicit Thelma Cole's knowledge of her son's possible participation in other burglaries - an area of inquiry clearly prohibited by Rule 404(b).