February 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL GATSON A/K/A TOKYO D. GATSON, CHRISTOPHER WRIGHT, TOKYO GATSON, GATSON D. TOKYO, JAY MICHAELS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. I-04-09-1755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2008
Before Judges Wefing and LeWinn.
A jury convicted defendant of three counts of third-degree burglary, N.J.S.A. 2C:18-2; one count of second-degree theft by unlawful taking, N.J.S.A. 2C:20-3; and two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. At sentencing, the trial court merged the two third-degree theft convictions into the second-degree conviction and sentenced defendant to ten years in prison, with a five-year period of parole ineligibility, to be served consecutively to the sentence defendant was then serving. The trial court also merged two of the burglary convictions into the remaining burglary conviction and sentenced defendant to five years in prison, to be served concurrently with the ten-year sentence for theft. Fines and penalties were assessed. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we have concluded that defendant's convictions must be reversed and the matter remanded for a new trial.
In 1999, the professional basketball player Patrick Ewing resided in Englewood Cliffs. Mr. Ewing was away during the weekend of September 17 to 19, 1999. When he returned home, he discovered that his house had been broken into. The interior of the house had been ransacked. Two automobiles, one a Mercedes Benz, the other a Lincoln Navigator, had been taken, together with personalty having an estimated value in excess of $80,000. Included in the items stolen was the championship ring he received when he played on the winning team for Georgetown University.*fn1 In addition, although Mr. Ewing did not realize it at the time, one of the items that had been taken from his home was a book distributed to the players and staff of the New York Knicks which listed the players' names, addresses and telephone numbers.
Ten days after this burglary, Patrolman John Rodriguez of the Greenwich, Connecticut, police department responded to a resident's call about a suspicious vehicle. Patrolman Rodriguez stopped the vehicle as it was heading southbound on the Merritt Parkway and spoke to the driver, Andre Wiggins. The car had a New Jersey license plate and was registered to Christopher Wright. Mr. Wiggins gave permission to search the car. On the center console was a sheet of paper bearing the name "Herb" and a street address and telephone number. Mr. Wiggins was permitted to leave. Subsequent investigation revealed that the address and telephone number were for Herb Williams, a teammate of Patrick Ewing.
Later that evening, Patrolman Rodriguez responded to the Merritt Parkway where a Connecticut state trooper had stopped two black males walking northbound. The two identified themselves as Calvin Parish and Christopher Wright. The two men asked for a ride to police headquarters so they could arrange a ride home and the police obliged. Before the men departed, the police took their picture. Later investigation revealed that Christopher Wright was in fact Daniel Gatson.
The efforts by the police to solve the crime were not immediately successful. The two vehicles were recovered the following month in a parking garage in New York City. The attendants were unable to provide any description of who left the vehicles other than that they were two black males.
Some five years later, in 2004, the police learned that one of the latent fingerprints recovered from the Ewing home matched the prints of Alize Bethune, who was then in custody in Essex County. Members of the Bergen County Prosecutor's Office and the Englewood Cliffs Police Department interviewed Bethune. Confronted with the fingerprint match, Bethune confessed his involvement in the burglary. Bethune said that he had been a friend of defendant's for several years when he received a telephone call from him on the evening of September 17, 1999, asking that Bethune pick him up near the George Washington Bridge in Fort Lee. Defendant directed Bethune to a nearby Staples parking lot where defendant picked up another car and told Bethune to follow him. They drove to Englewood Cliffs, and defendant parked his car and got into Bethune's. They then drove to a house and backed into the driveway. The garage door opened and the two men walked into the garage and then into the house. Bethune said another man was present and that both defendant and the other man wore ski masks and gloves. He said that the men placed some pillowcases in the trunk of his car and that defendant and the other man then drove the Mercedes and the Navigator and Bethune followed them to a parking garage in New York City where they left the vehicles and got into Bethune's car. Bethune then drove them to the home of defendant's grandmother, where the two men got out and retrieved the pillowcases. Before leaving, defendant gave Bethune $100.
Although defendant and Bethune had been friends for some time, they had a falling out in 2000, which led to a complete severing of their relationship. The record does not make clear what led to the rupture, only that it occurred.
Bethune was interviewed twice by the police with respect to his involvement in burglarizing Mr. Ewing's home. During the second interview, he was shown a photo array from which he selected defendant's picture.
Bethune was indicted, together with defendant, for this incident. Bethune eventually negotiated a plea bargain under which he pled guilty to all six counts of the indictment with the understanding that the maximum sentence he would receive would be five years in prison and that he would testify at defendant's trial. He admitted that in light of his extensive criminal record (he had at least thirteen prior indictable convictions and multiple aliases), he was, absent the plea bargain, subject to being sentenced to an extended term.
N.J.S.A. 2C:44-3(a). He acknowledged that if he were to be sentenced to an extended term, he could receive a sentence in excess of forty years in prison.
On appeal, defendant, through counsel, raises the following issues:
POINT I SHOWING THE JURY A PHOTO OF DEFENDANT IN ORANGE PRISON GARB VIOLATED THE DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT II THE PROSECUTOR IMPROPERLY ARGUED, WITH NO BASIS IN THE RECORD, THAT THE PRINCIPAL WITNESS AGAINST DEFENDANT WAS WORTHY OF BELIEF BECAUSE HIS PLEA DEAL WOULD SEND HIM TO PRISON WHERE THE "RULES" ARE "DON'T DEAL," AND THAT, AFTER TESTIFYING AGAINST DEFENDANT, THE WITNESS MIGHT EVEN BE "FOLLOWED BY THE PERSON HE HAS IMPLICATED" OR OTHERWISE HARMED IN SUCH A "VERY BAD PLACE." (Not Raised Below)
POINT III THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE BECAUSE TWO CLEARLY SUPPORTED MITIGATING FACTORS WERE IGNORED BY THE JUDGE.
One of the witnesses who testified for the prosecution was Detective Chris Barzalotta of the Bergen County Prosecutor's Office, who administered the photo array from which Bethune selected defendant's picture. Detective Barzalotta explained that he was asked to handle the photo array because he was not involved in the investigation of the incident and knew nothing about it. Neither was he involved in preparing the photo array, which consisted of six photographs, including one of defendant. After defendant's attorney offered to stipulate that Bethune had selected defendant's picture from the array, the prosecutor continued to question him in detail about the procedures that were followed and Bethune's selection of defendant's picture.
Defendant complains on appeal that during this testimony, Detective Barzalotta displayed to the jury the particular picture of defendant, which happened to be an eight-inch by ten-inch color photograph in which defendant was wearing an orange prison suit. Although it is not reflected in the trial transcript, defendant contends that his attorney requested a mistrial at that juncture because of the obvious prejudice to his client and that the trial court denied his request. The prosecution does not dispute this recitation of events.
Defendant filed a motion for a new trial and included this incident as one of the grounds upon which a new trial should be granted. The trial court denied the motion. In discussing this issue, it noted that the photograph was not introduced into evidence and thus was not taken into the jury room. The trial court also commented that it had instructed the jury to disregard anything that was not in evidence, and it had no basis to conclude that the jury had disregarded these instructions with respect to this picture. It noted further that identification was not a critical issue in the case. We do not find this analysis persuasive.
We consider State v. Burton, 309 N.J. Super. 280 (App. Div.), certif. denied, 156 N.J. 407 (1998), to be instructive. The defendant in that case was tried and found guilty of third-degree theft from the person. Id. at 284. The victim selected the defendant's picture from a photo array, which consisted of six photographs of males in jail clothing. Id. at 286. The entire array was admitted into evidence over the defendant's objection. Id. at 286-87. The trial court gave the following limiting instruction.
In this case, there was a photo array that I permitted to be marked into evidence. No special importance is to be given to the array, because the police have pictures of many people and for different reasons. Now, merely because all people are in orange suits, that is not to say that you are to consider that for anything other than the fact that the array was shown to Glen Craven. [Id. at 287.]
We concluded that despite a trial court's broad discretion over the admission of evidence, the array should not have been received into evidence.
The probative value of the photographs, particularly in light of the fact that they were introduced only to enhance the reliability of the identification, was substantially outweighed by the risk of undue prejudice in bringing to the attention of the jury the fact that defendant had previously been arrested and incarcerated.
Moreover, we can conceive of no instruction which could effectively and realistically neutralize the prejudice to defendant. The photographic array should not have been admitted into evidence. [Id. at 288-89.]
We determined, nonetheless, that the defendant's conviction should not be overturned. We noted that whether an error may be considered harmless "depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 289. We summarized the evidence that had been presented at the defendant's trial and concluded that the evidence of his guilt was "overwhelming." Ibid.
A canvass of the evidence in this matter, however, does not lead to a similar conclusion. There was no physical evidence of defendant's involvement in this crime. The only real evidence against him was the testimony of Bethune, who had negotiated a very favorable plea bargain for himself in exchange for his testimony at defendant's trial.
The trial court noted, in denying defendant's motion for a new trial, that identification was not a significant issue in this case. We agree. But that factor, in our judgment, makes the display of this picture even more prejudicial. It contributed nothing to the trial of this matter other than to let the jury be aware of the fact that defendant had, in the past, been incarcerated.
Defendant also complains that certain remarks made by the prosecutor were improper and unfairly prejudicial. The prosecution's case turned on whether the jury considered Bethune a credible witness. During his summation, the prosecutor sought to convince the jury that it should accept Bethune's testimony. He did so, however, in the following manner.
And as I told you, when he goes to prison, he may be followed by the person who he has implicated. Do you think that this is easy to do? Prison's a bad place. It's a very bad place. It has its own rules. And one of them says, don't deal. Don't help law enforcement. He goes down to prison with that on his -- you think about that when [defense counsel] says, he just got up there and sang that song just to help himself. Well he helped himself, but . . . .
Defendant made no objection to these remarks when they were made but now contends that these remarks violated his right to a fair trial. He stresses that the remarks have no evidential support in the record and were only aimed at bolstering Bethune's credibility. The State responds that the remarks were based on common sense and were not improper.
We are unable to accept the State's characterization of these remarks. It is improper for a prosecutor "in summing up to comment on facts not shown or reasonably inferable from the evidence in the case." State v. Farrell, 61 N.J. 99, 102 (1972). We reject the State's assertion that these remarks were "innocuous." There was absolutely no basis to imply to this jury that defendant and Bethune might end up incarcerated in the same institution. These remarks, moreover, carried the clear inference that defendant was capable of seeking violent retribution against Bethune if the opportunity presented itself. Such an implication only heightened the potential for prejudice from the jury having seen a photograph of defendant in prison garb.
In Farrell, supra, the Supreme Court reversed defendant's conviction for first-degree robbery after the prosecutor had argued to the jury that certain observers of the trial had only attended to intimidate the State's principal witness, who had pleaded guilty to being an accomplice and was awaiting sentencing.
The State's case consisted entirely of the testimony of an alleged accomplice, Lutz, who had pleaded guilty to the offense but had not yet been sentenced at the time of the trial. There is no doubt in our minds that reference by the prosecutor to things not in the record which had the tendency to bolster Lutz's credibility and to show that Farrell attempted to obstruct justice was harmful to the defendant. What is a juror who did not notice the supposed spectators or the alleged intimidation of Lutz to think? As Mr. Justice Sutherland observed in Berger,*fn2 cited above, because the prosecutor represents the government and people of the State, it is reasonable to say that jurors have confidence that he will fairly fulfil his duty to see that justice is done whether by conviction of the guilty or acquittal of the innocent. His comments in summation whether proper or improper carry with them the authority of all he represents. State v. Johnson, 31 N.J. 489. 511 (1960).] It is unlikely a juror will believe a prosecutor would intentionally mislead him. Rather, he will probably accept the statement that Lutz had been threatened and that he testified truthfully in the face of that threat, and the implication that Farrell attempted to obstruct justice. The witness' credibility so bolstered and the alleged wrongful conduct of the defendant and his friends in the court room so emphasized, it is not much of a step for a juror to take to vote for a conviction. [Farrell, supra, 61 N.J. at 105.]
Defense counsel had, during the course of his summation, rendered a scathing attack upon Bethune's credibility. The prosecutor was entirely justified in using the record to argue to the jury why it should reject those attacks and convict defendant. The prosecutor could not, however, step outside the record in an attempt to repair whatever damage the State's case suffered from those remarks.
The prosecutor's remarks were improper and added to the prejudicial effect of displaying defendant's picture in prison garb.
Defendant has submitted a pro se supplemental brief in which he raises the following contention:
THE TRIAL COURT FAILED TO GIVE CURATIVE INSTRUCTIONS, AFTER TESTIMONY WAS GIVEN TO THE JURY BY BUREAU OF CRIMINAL IDENTIFICATION DETECTIVE'S [sic], THAT THE DEFENDANT HAD A CRIMINAL FILE AND WAS A SUSPECT FOR THAT REASON ALONE, AND BY DOING SO, WAS PLAIN ERROR, AND THEREBY DENYING DEFENDANT DUE PROCESS OF LAW AND DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
Defendant's argument revolves, in part, around the testimony of Lieutenant Detective Anthony Borgenoni of the Bergen County Sheriff's Office, who testified as an expert in the field of fingerprint identification. He explained that several latent prints were taken from the two motor vehicles that had been recovered in New York City. He said that he compared those prints "to suspects in the case," naming defendant. He was unable to find a match.
Defendant contends that this testimony was improper because it let the jury know that defendant was a suspect in the case and that his fingerprints were on file. As to the first issue, it is not clear from the record when Lieutenant Borgenoni made his comparison, i.e., was it before Bethune had identified defendant or was it after. In any event, the trial court gave, as part of its charge to the jury, a limiting instruction that the fact that defendant's fingerprints were on file could not be considered by it during its deliberations. It clearly told the jury:
Now with respect to fingerprints, folks you may recall that there was testimony that the Bergen County Sheriff's Department had fingerprints of the defendant on file. You are not to consider that fact as prejudicing the defendant in any way. That fact is not evidence that the defendant has ever been convicted, or even arrested for any crime, and is not to be considered as such by you. The fact that the Sheriff's Department is in possession of a person's fingerprints does not mean that the person has a criminal record. Fingerprints come into the hands of law enforcement agencies from many legitimate sources.
This instruction adequately ameliorated any potential for prejudice to defendant.
Because we have concluded that defendant's convictions must be reversed, we do not address his argument with respect to his sentence.
Defendant's convictions are reversed, and the matter is remanded to the trial court for further proceedings.