On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-09-1243.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Cuff and Baxter.
Defendant Alfred A. Smith appeals from his conviction following a trial by jury on charges of third-degree forgery of a check, N.J.S.A. 2C:21-1(a)(2) (count one); and third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (count two). The court sentenced him to an extended term of ten years imprisonment, five years without parole on each count concurrent to each other, but consecutive to a Maryland sentence defendant was then serving. We agree with defendant's claim that the admission of an extraordinary amount of unduly prejudicial evidence, including prior bad act evidence, denied him a fair trial. We reverse.
On her way to work on March 8, 2005, Betty Ressel placed a $5,000 check payable to VISA in her curbside mailbox at her home in Austin, Texas. Uneasy about leaving such a large check in the mailbox, her husband, Warren Ressel, decided to retrieve the check from the mailbox; however, when he arrived at the mailbox, the check was gone. Ressel immediately contacted his bank, Bank of America, to report the stolen check and to request a stop-payment. The bank closed that account and provided Ressel and his wife with a new account number.
Each day, Ressel went to the local bank branch to review the activity on the closed checking account with bank representatives to determine which checks were authorized and which were being fraudulently issued in his name. He testified that one check in particular, written to "Giant" in Mount Laurel, New Jersey, in the amount of $134.10 and debited from his checking account on May 20, 2005, was forged. Ressel knew that the check was forged because the signature was not his and the check was imprinted with the wrong heading and bank symbol.
Ressel also testified that at some point after the $5,000 check was stolen from his mailbox, he received a note from Lackland Storage Company in Elizabeth, New Jersey, thanking him for opening a self-storage unit at its facility. Ressel had not been in New Jersey in more than ten years and had not rented the storage unit in question. The note, addressed to "Will" Ressel, had been sent not to Ressel's current address, but instead to his wife's parents' former address, which was the same address that was on the check stolen from Ressel's mailbox. Over defendant's objection, a photograph of the contents of the storage bin, full of consumer merchandise, was admitted in evidence.
On cross-examination Ressel was asked about other checks that were drawn on the bank account that he closed after discovering the forged Giant check. Ressel explained that a man named David Duncan from Vallejo, California, whom neither he nor his wife knew, had apparently written checks on the account in question after Ressel had closed it. As we explain later in this opinion, the prosecutor subsequently asked a different State's witness extremely damaging questions about defendant's relationship to David Duncan.
The majority of the testimony offered by the State was presented by Detective David Hill of the Montgomery County police department in Maryland. Hill described evidence seized pursuant to a search warrant from an apartment allegedly belonging to defendant at 12650 Grey Eagle Court in Germantown, Maryland. Over defendant's objection that the Germantown apartment was not his, the court permitted the State to introduce the following evidence seized from that apartment: an invoice from onetwothreechecksonline.com sent to defendant; a bill from Checkstoorder.com addressed to a person named Tony Smith; receipts for various consumer items purchased by defendant; a blank checkbook refill, laminating sheets, paper edge trimmer, check stock paper and other computer equipment; photographs of credit card activation documents in the name of Warren Ressel; Yahoo directions from 1445 Brace Road in Cherry Hill to the Giant food store on Ark Road in Mount Laurel; and directions from the Giant food store in Mount Laurel to a Giant food store in Bensalem, Pennsylvania and from the Giant food store in Mount Laurel to a Giant food store in Brooklyn.
During Hill's testimony, the prosecutor played the Giant supermarket surveillance videotape from the day the forged $134.10 check drawn on Ressel's account was allegedly presented at the Giant supermarket in Mount Laurel. The videotape was grainy, and after the videotape was played for the jury, Hill identified defendant as the person presenting the $134.10 check. Hill explained that he made the identification by comparing still photographs of defendant, obtained from various sources, to the man shown on the surveillance videotape.
Finally, Hill stated that there was "no doubt in his mind" that defendant lived at the Germantown apartment. Hill based that opinion on an interview with the apartment manager and a review of the lease as well as the letters, receipts, invoices and bank statement found at the apartment and addressed to defendant.
Hill also testified that he was able to lift fingerprints from the paper shredder in the Grey Eagle Court apartment and "the prints came back to [defendant]." When asked whether defendant "was the only person residing at that particular location," Hill said, "[f]or the last two years, yes."
Next, the prosecutor asked Hill whether, based on his investigation, he was treating David Duncan "as a suspect or a victim," to which Hill answered "a victim." Hill proceeded to explain that as a result of his investigation, he was able to establish that defendant was the person "who was using" Duncan's name. When asked "how positive" he was of that conclusion, Hill answered "crystal clear."
On cross-examination, defense counsel asked Hill how he knew that Duncan was a victim if he had never spoken with him. Hill responded that he "spoke to an investigator with Wells Fargo who was conducting an investigation where [Duncan] was the victim of identity theft." Hill acknowledged that nobody from his office or from the Secret Service had traveled to California to take a statement from Duncan.
Defense counsel's cross-examination of Hill elicited information harmful to defendant, including evidence of a California driver's license with defendant's name and photograph that was found in the Grey Eagle Court apartment. Such testimony tended to establish that the apartment and its contents belonged to defendant. At another point, while questioning Hill about the fingerprints found on the shredder, defense counsel asked Hill to acknowledge that the fingerprints "came back in the name of a James Farrell, not [defendant]," to which Hill answered "James Farrell is an alias of Alfred Smith. They have the exact SBI number which means they have exact same prints." This too was extremely damaging.
The State also called Gerald LaPorte, a senior document analyst employed by the United States Secret Service. LaPorte described his reconstruction of shredded documents found in the Germantown, Maryland apartment, including five checks bearing the name Warren Ressel and a Texas driver's license containing defendant's photograph, but bearing Ressel's name and address. LaPorte explained that the shredded checks were produced by using an ink jet printer whereas commercially produced documents use a completely different process known as offset lithography.
After the admission of these exhibits in evidence during LaPorte's testimony, the judge provided the following limiting instruction:
Members of the jury, the evidence . . . that you just saw on the overhead display . . . with respect to the evidence of those acts, you are not to consider them admissible to prove the disposition of a person in order to show that such a person acted in conformity with criminal activity. The evidence is admitted, may be admitted, may be considered by you 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.
The judge issued a similar instruction during his final charge to the jury.
Defendant was the sole defense witness. He testified that for the past twenty or twenty-five years he lived in Escondido, California, commenting that he traveled back and forth to Maryland to visit his girlfriend, who lives near Germantown.
When asked about the apartment on Grey Eagle Road in Germantown where police executed the search warrant, he acknowledged that he leased the apartment two years earlier as an alternative to staying with his girlfriend when he came East. Defendant insisted that at the time of the police raid he no longer had control of the apartment or its contents because he sublet it a few months earlier to Duncan, who lived there with several other people. Defendant denied that he wrote the $134.10 check to Giant.
On cross-examination, the prosecutor confronted defendant with the Texas driver's license found in the Grey Eagle Court apartment that contained Ressel's personal information but defendant's photograph. When asked by the prosecutor if he was the person depicted in the photo on that license, defendant answered no. When the prosecutor pressed him, defendant changed his answer and said "[t]hat was my picture 20 years ago. I'm gray. You see any gray hair on that ...