March 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONT FORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0775.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 2, 2008
Before Judges Fuentes and Gilroy.
Tried to a jury, defendant Lamont Ford was found guilty of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (Count Two); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (Count Three); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and b(3) (Count Four); and third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (Count Five). Tried at the same time as the indictable offenses, defendant was also found guilty of two ancillary disorderly persons offenses charged under a complaint summons: possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4); and possession of drug paraphernalia, N.J.S.A. 2C:36-2.*fn1
On October 6, 2006, defendant was sentenced on Counts Three and Five to two five-year terms of imprisonment with a three-year period of parole ineligibility, the sentences to run concurrently. Counts One and Two were merged with Count Three, and Count Four was merged with Count Five. On each of the disorderly person offenses, defendant was sentenced to six-month terms of imprisonment, concurrent with the sentence imposed on Count Three of the indictment.
Defendant does not contend that the verdicts were against the weight of the evidence. Consequently, we will describe and discuss the relevant facts, as necessary, during our disposition of each of the issues raised on appeal. On appeal, defendant argues:
THE TRIAL JUDGE ERRONEOUSLY RULED THAT MR. FORD'S 1990 CONVICTION OF ROBBERY COULD BE INTRODUCED BY THE STATE TO IMPEACH MR. FORD'S CREDIBILITY IF FORD TESTIFIED IN HIS OWN DEFENSE. HE ALSO FAILED TO DECIDE WHETHER THE PRIOR CONVICTION NEEDED TO BE SANITIZED. (PARTIALLY RAISED BELOW).
A. AT THE 2006 TRIAL, THE TRIAL JUDGE ERRONEOUSLY CONCLUDED THAT MR. FORD'S 1990 CONVICTION FOR ROBBERY WAS NOT SO REMOTE AS TO PRECLUDE THE STATE FROM USING IT TO IMPEACH FORD IF HE TESTIFIED, OR IN QUESTIONING FORD'S CHARACTER WITNESS.
B. THE TRIAL JUDGE FAILED TO CONDUCT THE SECOND TIER OF ANALYSIS
REQUIRED BY BRUNSON:*fn2 WHETHER FORD'S 1990 PRIOR CONVICTION SHOULD HAVE BEEN SANITIZED IF THE STATE WANTED TO USE IT FOR IMPEACHMENT PURPOSES. (NOT RAISED BELOW).
1. SANITIZING PRIOR CONVICTIONS "SIMILAR" TO CURRENT OFFENSE.
2. SANITIZING PRIOR CONVICTIONS DISSIMILAR TO CURRENT OFFENSE.
3. THE SINGLETON*fn3 HOLDING APPLIED IN THIS CASE.
4. THE HAMILTON*fn4 HOLDING APPLIED IN THIS CASE.
SINCE THERE WAS NO EVIDENCE THAT MR. FORD BELONGED TO A "GANG," THE PROSECUTOR ENGAGED IN MISCONDUCT AT TRIAL BY REPEATEDLY ASKING QUESTIONS AND ELICITING TESTIMONY THAT IMPLIED FORD WAS A GANG MEMBER. MOREOVER, THESE IRRELEVANT BUT PREJUDICIAL REFERENCES WERE INADMISS[I]BLE UNDER N.J.R.E. 403. (NOT RAISED BELOW).
A. REFERENCES TO THE PASSAIC COUNTY PROSECUTOR'S GANG SUPPRESSION UNIT AT TRIAL WERE INADMISSIBLE BECAUSE THEY WERE IRRELEVANT TO PROPER JURY DELIBERATIONS IN THIS CASE, YET HIGHLY INFLAMMATORY.
B. BY INJECTING THE GANG UNIT SO MANY TIMES INTO HIS QUESTIONS AND IN THE POLICE OFFICERS' DIRECT TESTIMONY, THE ASSISTANT PROSECUTOR ENGAGED IN PROSECUTORIAL MISCONDUCT.
MR. FORD'S TRIAL COUNSEL FELL BELOW ANY REASONABLE STANDARD OF PROFESSIONAL COMPETENCE IN THAT HE FAILED TO REQUEST SANITIZATION OF THE PRIOR CONVICTION; DID NOT OBJECT TO TESTIMONY SUGGESTING THAT FORD WAS A MEMBER OF A GANG; AND CALLED MS. STARK AS A CHARACTER WITNESS, KNOWING THAT THIS WOULD ENABLE THE STATE TO INTRODUCE UNSANITIZED EVIDENCE OF MR. FORD'S 1990 CONVICTION FOR ROBBERY. (NOT RAISED BELOW).
For reasons that follow, we affirm.
In Point I, defendant contends that the trial court erred in determining that his 1990 robbery conviction could be introduced to impeach his credibility if he testified in his defense. Defendant also contends for the first time on appeal that the trial court failed to sua sponte sanitize the 1990 robbery conviction before allowing the State to cross-examine his character witness.
N.J.R.E. 609 provides in relevant part that "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." The party seeking to bar the admission of prior-conviction evidence bears the "burden of proof to justify [its] exclusion." State v. Sands, 76 N.J. 127, 144 (1978). The decision whether to admit such evidence "rests within the sound discretion of the trial judge." Ibid. Accordingly, we will not disturb a trial judge's decision to admit prior-conviction evidence unless we determine a clear abuse of discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987).
A trial court may exclude prior-conviction evidence "when the evidence's 'probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice.'" Hamilton, supra, 193 N.J. at 263-64 (quoting Sands, supra, 76 N.J. at 147). Thus, the key to admitting prior-conviction evidence is its remoteness. Id. at 144. However, [r]emoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [Id. at 144-45.]
Here, prior to commencement of trial, defendant requested a Sands hearing seeking to prohibit the State from impeaching his credibility by admitting the 1990 armed robbery conviction on the sole ground that the conviction was too remote from the present offenses that occurred in January 2005. At the time of the hearing, the State made known to the trial court that, in addition to the 1990 armed robbery conviction, defendant was convicted in the municipal court in July 2002 and April 2003 of two disorderly persons offenses, one involving the intent to purchase a CDS.
The trial court ruled that, in the event defendant elected to testify, the State would be permitted to use the 1990 armed robbery conviction for the sole purpose of impeaching defendant's credibility. In reaching its decision, the trial court considered the remoteness of the 1990 conviction; the serious nature of that conviction, which involved dishonesty; and the two intervening disorderly persons convictions. Defendant argues that of the three relevant factors determined by the court, only the seriousness of the 1990 conviction militated in favor of permitting the State to introduce the prior conviction to impeach his credibility if he testified. Defendant contends that the other relevant factors supported a finding in favor of excluding the prior-conviction evidence. We disagree.
We are satisfied that the trial court correctly determined that the State could use the 1990 conviction to impeach defendant if he testified. Armed robbery is a serious offense, which reflects on a person's dishonesty. Moreover, under Sands, a defendant's municipal court convictions can be considered in deciding whether prior-conviction evidence is too remote for impeachment purposes. State v. McBride, 213 N.J. Super. 255, 267 (App. Div. 1986) (stating that intervening municipal court convictions can be considered in determining whether prior-conviction evidence is too remote for impeachment purposes). After weighing the relevant circumstances, the trial court correctly concluded that defendant failed to carry his "heavy burden" on the motion to exclude the prior-conviction evidence. Sands, supra, 76 N.J. at 145.
Defendant also argues that the trial court failed to sua sponte sanitize the 1990 conviction before allowing the State to use the evidence in cross-examining his character witness, Diana Stark. Because defendant raises this argument for the first time on appeal, we consider the issue under the plain error rule. R. 2:10-2. We will only reverse on the basis of unchallenged error, if the error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 336 (1971). After considering defendant's argument in light of the record and applicable law, we determine the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We find no error, much less plain error. Nevertheless, we add the following comments.
Brunson, supra, followed Sands, supra. Noting that jurors are "most likely to misuse prior[-]conviction evidence when the prior and present offenses are the same," Hamilton, supra, 193 N.J. at 266, to impute guilt to the defendant of the present offense, the Brunson Court held that:
[I]n those cases in which a testifying defendant previously had been convicted of a crime that is the same or similar to the offense charged, the State may introduce evidence of defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted. [Brunson, supra, 132 N.J. at 391.]
Sixteen years after Brunson, the Court held that sanitation of a prior conviction may also be necessary to prevent undue prejudice "to a defendant when the prior[-]conviction evidence is so similar to the criminal proceedings that brought defendant under the glare of police scrutiny, that the evidence risks unduly prejudicing the jury's fair hearing of the defendant's version of what transpired." Hamilton, supra, 193 N.J. at 268. Simply stated, if the nature of the prior-conviction evidence, although not the same or similar to the crime for which the defendant is on trial, is similar to the underlying circumstances that will be presented to the jury, the court should sanitize the prior-conviction evidence. Ibid.
Here, the 1990 armed robbery conviction is not substantially the same or similar to the crimes charged, nor is it similar to the underlying convictions surrounding defendant's present offenses. Accordingly, sanitation of the prior-conviction evidence was not required.
Defendant argues next that he was denied a fair trial by the prosecutor highlighting, in his questions to the police witnesses and by eliciting responsive answers from those witnesses, facts implying that defendant was a "gang member." Defendant contends that the constant references to the police witnesses as members of the "Passaic County Prosecutor's Gang Suppression Unit" were highly inflammatory as they insinuated "to the jury that [he] was a member of a gang and therefore someone who was both dangerous and more likely to be selling drugs." Defendant also asserts that he was prejudiced because the trial judge did not sua sponte instruct the jurors to not consider this information when deliberating on the drug distribution charges.
Because defendant did not object to the prosecutor's questions or the police officers' responses, they will be disregarded on appeal unless the questions and answers were plain error. R. 2:10-2. "Not every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998). "The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence." State v. Winter, 96 N.J. 640, 646 (1984). The test is whether the error was "clearly capable of producing an unjust result." State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2).
"Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Papasavvas, 163 N.J. 565, 616, op. corrected, 164 N.J. 553 (2000). "'To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense.'" Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)).
In considering whether prosecutorial misconduct denied the defendant a fair trial, an appellate court will consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993) (citations omitted). Simply stated, "[t]he determination of whether prosecutorial misconduct denied defendant the right to a fair trial must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Ibid.
Defendant contends that, although the State did not produce any evidence that he was a member of a street gang, the prosecutor improperly highlighted twenty-five times that the police witnesses were members of the "Passaic County Prosecutor's Gang Suppression Unit" when they arrested defendant. As an example, defendant cites to the following question of Detective Al Lewis:
Prosecutor: Okay. Prior to being assigned to the Warrant Squad, sir, where were you assigned?
Lewis: The Gang Suppression Unit. Prosecutor: And just for the benefit of the jury, who runs the Gang Suppression Unit?
Lewis: The Passaic County Prosecutor's Office.
Prosecutor: Calling your attention, sir, to January 4th, 2005, were you working for the Gang Suppression Unit?
As another example, defendant cites to Detective Sergeant Rosario's response to the Prosecutor's question when describing the area of the arrest:
Prosecutor: Okay. Now, in your experience, sir, as a [s]heriff's [o]fficer for about 15 years, how would you describe the area of 16th Avenue and Summer Street?
Rosario: A lot of narcotics and the Blood gangs in that area.
We agree that, although many of the references to the name of the investigative unit to which the three police officers were assigned at the time of the arrest should not have been stated during the trial, and should have been prevented by pre-trial instructions of the trial prosecutor to the witnesses, we do not conclude that they constituted plain error. Initially, although defendant contends that the references to the name of the investigative unit and description of the area of arrest were twenty-five in number, several of the questions and responses complained of occurred not during the trial in which defendant was convicted, but in a prior trial proceeding before a different jury that resulted in a mistrial for other reasons.
Secondly, although the references to the investigative unit to which the police witnesses were assigned could have been minimized, we do not conclude that the trial prosecutor was intentionally attempting to cloak defendant in a cloth bearing gang colors. We determine that most of the references involve the police witnesses providing information regarding their particular assignments in the prosecutor's office as background information for the jury. More importantly, we are satisfied that the questions and responses complained of, if error, constitute harmless error, because they were not "sufficient to raise a reasonable doubt as to whether [they] led the jury to a result it otherwise might not have reached." Daniels, supra, 182 N.J. at 95. We are satisfied that the evidence of defendant's guilt overwhelmed any possible prejudice caused by the preliminary exchanges between the prosecutor and the police witnesses.
On January 4, 2005, Detective Rosario was conducting undercover surveillance in the vicinity of Sixteenth Avenue and Summer Street in Paterson. For approximately ten minutes, Rosario observed a male, later identified as defendant, inside the doorway entrance of 332 Summer Street. As Rosario was observing defendant, he saw another male approach defendant and engage in a short conversation with him. The second male handed defendant what appeared to be paper money, after which defendant walked to a grey Ford motor vehicle parked in front of the Summer Street building. Defendant quickly entered and exited the motor vehicle, returned to the second male, and handed an item to him. The second male exited the building. Based on his training and experience, Rosario concluded that he had just observed a hand-to-hand drug transaction. Although Rosario contacted other detectives in the area to stop the second male, the detectives were unable to locate him.
Shortly thereafter, Rosario saw a third male, who was later identified as David Evans, approach defendant. Again, Rosario observed Evans hand defendant what appeared to be paper money, after which both individuals walked into the hallway of the Summer Street building. After a short period of time, both individuals exited the building, and Evans walked away toward Sixteenth Avenue. Believing that he had just witnessed a second drug transaction, Rosario contacted members of an arrest team to stop Evans. After the detectives located Evans, he was detained and placed under arrest. A search of his person disclosed that he was in possession of one small, green-tinted baggie of crack cocaine. Shortly thereafter, the arrest team was instructed to arrest defendant. Meanwhile, Rosario continued surveillance of defendant until he was detained by the other detectives.
Detective Mella transported defendant to police headquarters in his police vehicle. On route, Mella observed defendant moving around in the rear seat. On arrival at headquarters after defendant was removed from the car, Mella found a clear, plastic baggie containing what appeared to be crack cocaine on the rear floor of the car.
After defendant was arrested, a motor vehicle inquiry of the Ford motor vehicle disclosed that the license plates on the vehicle were issued to a different motor vehicle. On receiving that information, the police towed the Ford to police headquarters where a drug-detecting dog indicated that drugs were located in the vehicle's center console. On search of the console, the police found one bag of marijuana, six green-tinted baggies of crack cocaine, and twenty-three empty baggies.
We next address defendant's argument regarding the sufficiency of the jury charge. Defendant contends that it was error for the trial judge not to have sua sponte charged the jury to disregard the prosecutor's and police witnesses' references to the term gangs. This argument was not raised in the trial court. Accordingly, we will not reverse unless we determine that the failure to so instruct the jury constituted plain error. R. 2:10-2. We do not find plain error. Moreover, a party's failure to object to a jury instruction is presumed to reflect an assessment of a charge unlikely to prejudice his or her case. Macon, supra, 57 N.J. at 333-34. Accordingly, courts are generally reluctant "to reverse on the grounds of plain error when no objection to a charge has been made." State v. Weeks, 107 N.J. 396, 410 (1987).
Defendant argues in Point III that he was denied effective assistance of trial counsel by his attorney's: 1) failure to request sanitization of the prior-conviction evidence; 2) failure to object to the prosecutor's questions and the police witnesses' responses insinuating that he was a member of a gang; and 3) decision to call Stark as a character witness, knowing that this would open the door for the State to introduce the prior-conviction evidence of defendant's 1990 conviction for armed robbery.
Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn5 State v. Preciose, 129 N.J. 451, 463 (1992); see also State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008). The second prong is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315.
For reasons previously stated, we conclude that defendant's claim of ineffective assistance of counsel based on counsel's failure to request that the prior-conviction evidence be sanitized and his failure to object to the questions and responses suggesting that defendant was a member of a gang are meritless. Defendant cannot meet the second prong of Strickland. As to defendant's claim of ineffective assistance of counsel based on counsel's calling character witness Diana Stark and opening the door for the State to introduce the 1990 prior conviction for armed robbery, we cannot determine from the record before us whether counsel's decision in calling that witness to testify, knowing that the State might attempt to cross-examine her regarding defendant's prior conviction, involved trial strategy. Accordingly, we decline to decide that issue and affirm the convictions without prejudice to defendant raising that ineffective assistance of counsel claim in a petition for post-conviction relief. Preciose, supra, 129 N.J. at 460.