June 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NAIM JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-05-1628 and 06-05-1629.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2009
Before Judges Payne and Waugh.
Defendant, Naim Jones, was charged in separate indictments with (1) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3f,*fn1 and (2) second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. A bifurcated trial occurred, at the conclusion of which a jury found him guilty on all counts. Defendant was given an extended-term sentence of ten years, with five years of parole ineligibility on the second-degree conviction, and to lesser concurrent sentences on the remainder. He has appealed.
On appeal, defendant raises the following arguments for our consideration:
The trial court erred in denying Appellant's motion to dismiss the indictment or in the alternative to provide a spoliation of evidence charge. (Raised below.)
The trial court's assistance of the State during its direct examination of the State's witness impermissibly merged the prosecutorial function with the judicial function. (Not raised below.)
The State's introduction of the Appellant's certified judgment of conviction was in error.
A. The State's introduction of the Appellant's certified judgment of conviction violated Appellant's right to confrontation, U.S. Const. Amend. 6 and N.J. Const., Art. 1, Para. 10. (Not raised below.)
B. The State's introduction of the Appellant's certified judgment of conviction violated the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). (Not raised below.)
The State's improper summation qualifies as Prosecutorial misconduct and substantially prejudiced Appellant's fundamental right to have a jury fairly evaluate the merits of his defense. (Not raised below.)
Trial Counsel's performance constituted ineffective assistance of counsel. (Not raised below.)
The facts of the matter, as set forth in the trial record, can be summarized as follows: At shortly after 9:00 a.m. on February 24, 2006, three plainclothes narcotics Newark police officers were patrolling in an unmarked car in the vicinity of Irvine Turner Boulevard, a high-crime neighborhood generating frequent complaints of drug-related activity. As the officers pulled into a driveway leading to the rear of the Grace West housing complex, one of the officers, Michael Grainger, noticed two males standing on steps leading to a walkway through the complex with currency in their hands. One wore a blue jacket; the other, a black hoodie. The latter was later identified as defendant. Another male, who stood next to them, handed currency to the man in the blue jacket in exchange for an object, and then walked off. At this point, Officer Grainger made eye conduct with defendant and indicated that he wished to purchase two vials of cocaine. Defendant waived Grainger out of his vehicle but, as another officer exited the car, one of the men yelled "five-oh" to indicate the presence of police. The two men fled, chased by the police officers, with the man in the blue jacket in the lead, defendant following, and officers Grainger and West running after them, side-by-side.
The chase led the men across Irvine Turner Boulevard, through the abandoned New Horizon Gardens housing complex, and into the Felix Fuld housing complex. Shortly after the chase began, defendant threw down a Glock nine millimeter handgun, which was retrieved by Grainger, who then resumed the chase at a distance somewhat behind Officer West.
As the two men reached the Felix Fuld complex, the man in the blue jacket, identified as "Twin" by an independent witness, Loretta Alston, a complex resident, split off from defendant, threw his blue jacket under a car, and disappeared. He was never apprehended. At the time of defendant's arrest, Alston informed the police that they had apprehended the wrong person.
However, Allston admitted at trial that she had only seen the police chase Twin, and that she had not seen defendant at all on the day in question.
In the meantime, defendant was witnessed by West entering building 184 of the Fuld complex. As Grainger arrived on the scene, he and West opened the door to the building, finding defendant, without his jacket, descending some steps. Defendant was taken into custody. The jacket was located on the second floor of the building. No drugs were found. Upon examination, a hollow-point bullet was found to be chambered in the handgun, and another hollow-point bullet, together with other round-nose rounds, were found in the gun's magazine. The gun was subsequently determined to be operable.
On appeal, defendant first argues that the trial judge erred in declining to dismiss the indictment after it was concluded that the State could not produce the police's dispatch tapes and motor patrol logs, as requested, or to give the jury a charge on spoliation of evidence.
When it was determined at trial that the requested evidence was unavailable, the trial judge conducted an N.J.R.E. 104 hearing to explore what efforts had been made by the State to retrieve it. Detective James Toma, an employee of the EsseX County Prosecutor's Office testified in that regard, and additional information was furnished by Assistant Prosecutor Krauthamer. The record established that defense counsel requested that the prosecutor obtain the materials in a pretrial memorandum filed on July 28, 2006. However, the prosecutor assigned to the case was later changed, and the request was not noted on the file jacket. As a result, the evidence was not produced.
On September 27, 2006, a further request was made in a letter to the replacement prosecutor, Krauthamer. She, in turn, requested that her investigators retrieve the file. They first made their request on October 10, 2006, nine days prior to the start of trial, by fax addressed to the Newark Police's Legal Affairs Department and by hand-delivery. An acknowledgement of the fax was received. However, the investigators were informed that the person who had the key to the drawer where the evidence would be stored was absent. On each of the three days immediately preceding trial, Toma personally spoke to the people in charge of the retrieval, without obtaining the evidence. Finally, on the first day of trial, Investigator Campo personally went to the police bureau and witnessed the police's search for the materials, which was unavailing. The motor patrol logs could not be located, and he was informed that the dispatch tapes likely had been reused. However, an event chronology, prepared by a dispatcher in the police's central communications department, was supplied to the defense and was utilized in cross-examination of Grainger in place of the missing materials.
After hearing argument on the matter, the trial judge denied defense counsel's motion to dismiss the indictment, finding the exculpatory value of the material to be insufficient to warrant such draconian relief. We agree, finding little indication in the record that such records would have been useful, even for purposes of impeachment. In this regard, defense counsel sought to demonstrate that three "units" had been present on the scene. Grainger agreed, but stated that a separate unit designation was given to each of the three officers in his unmarked car, and that it did not refer to three cars. Independent witness Alston confirmed that she had seen only three undercover officers, although she stated that uniformed police had been engaged at the abandoned New Horizon Gardens housing complex ridding it of squatters and what she termed "fiends." Thus, the evidence with respect to the participants in defendant's arrest was consistent. Even if more vehicles and plain clothes officers had been present at the Fuld complex, it is difficult to discern how that fact would have been relevant to the issue of defendant's guilt on weapons charges stemming from a weapons drop at a different location.
In circumstances in which the police have lost discoverable evidence, the prosecuting agency must bear whatever consequences flow from the loss. State v. Montijo, 320 N.J. Super. 483, 487 (Law Div. 1998); State v. Lewis, 137 N.J. Super. 167, 172 (Law Div. 1975). To determine whether the destruction of evidence constitutes a due process violation sufficient to warrant dismissal of the indictment, the trial judge must examine (1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether there was evidence of prejudice. State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed. 2d 723 (1998); State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985); State v. Serret, 198 N.J. Super. 21, 26 (App. Div. 1984), certif. denied, 101 N.J. 217 (1985); State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979). The United States Supreme Court has held:
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. (Footnote omitted.) To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S.  at 109-110, 96 S.Ct. 2392, 2400, 49 L.Ed. 2d 342, 353-54 (1976), evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. [California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed. 2d 413, 421-22 (1984).
As we have noted previously, the evidence that was lost by the police in this case has little or no exculpatory value. At most, it might have demonstrated an inconsistency in the police's testimony or that of witness Allston that would have affected credibility, but not the trial's result, as precedent requires. Washington, supra, 165 N.J. Super. at 155. In that regard, we find no suggestion that the evidence was directly relevant to the weapons charges that defendant faced. Moreover, the defense was permitted to utilize in cross-examination an event chronology that provided reasonably comparable evidence of the police's movements.
We have held previously that:
Without bad faith on the part of the State, "failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 33, 337, 102 L.Ed. 2d 281, 289 (1988). It is only the suppression of exculpatory evidence that violates due process "irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963). [George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006).]
In the absence of bad faith, "relief should be granted only where there is a 'showing of manifest prejudice or harm' arising from the failure to preserve evidence." Ibid. (citing Dreher, supra, 302 N.J. Super. at 489 (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 494 (App. Div.), certif. denied, 102 N.J. 337 (1985))).
Here, defendant has failed to demonstrate the existence of bad faith, or in its absence, manifest prejudice or harm. To demonstrate bad faith, defendant was required to present evidence either of egregious carelessness on the part of the police or misconduct on the part of the prosecutor that was tantamount to suppression. State v. Langella, 144 N.J. Super. 268, 282-83 (App. Div.), appeal dismissed, 74 N.J. 256 (1976). Defendant presented neither. The absence of the dispatch tapes appears to have stemmed from the police's reasonable practice of re-recording on them after ninety days. In this matter, defendant does not contend that a timely request for the tapes was made within the ninety-day period. The loss of the motor patrol logs can be attributed to police negligence, but not to conduct of a sufficiently more egregious nature that dismissal of the indictment would be required as a prophylactic measure. Similarly, the failure to inform the superseding prosecutor of the discovery request or the failure of the superseding prosecutor to independently learn of the request can constitute nothing more serious than simple negligence. Nor has defendant offered any evidence of manifest prejudice or harm resulting from the failure to produce discoverable evidence. As a consequence, we affirm the trial judge's decision to deny defendant's motion to dismiss the indictment, finding that it did not constitute an abuse of his discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006); Cooper v. Consolidated Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007).
The trial judge deferred a decision on whether to charge the jury on spoliation of evidence until the conclusion of the trial, and both parties briefed and argued that issue. At the conclusion of the arguments, the judge declined to provide the charge that defendant requested. We affirm that determination, as well. As Judge Weissbard noted in his decision in Montijo, "permitting an adverse inference would simply perpetuate the fiction that the statement was in fact exculpatory, a conclusion which is . . . questionable at best." 320 N.J. Super. at 493. We find that reasoning to be applicable here.
Defendant next argues that the trial judge improperly aided the prosecution during the direct examination of Officer Grainger. The record reflects that at the commencement of Grainger's testimony, the prosecutor established that Grainger and his partners, Officer West and Sergeant Costa, had driven down a driveway to the rear of a housing complex located on Irvine Turner Boulevard, had viewed what they believed to be a drug sale, had attempted an undercover buy, and had been recognized as undercover police officers. The suspected drug dealers had then run. Utilizing an aerial photograph, the prosecutor then asked Grainger to locate where the events had occurred. As questioning continued, the following exchange took place:
Q: And, if you can, place a G where it was that you saw the defendant drop the handgun you mentioned?
A: Okay. I actually stopped short of that in my testimony.
After the - the -
THE COURT: Well, hold on a second. Let's why don't you just ask the questions.
MS. KRAUTHAMER: Okay.
THE COURT: May I see counsel at sidebar.
Officer, you can take a seat. Why don't you do that. Okay?
THE COURT: You can't ask ["]show us where he dropped the handgun["] because he didn't testify to that.
MS. KRAUTHAMER: No, I [will] ask that. I apologize.
THE COURT: That's okay.
He - the last that I have here is five oh was yelled -
MS. KRAUTHAMER: Okay.
THE COURT: - and then they turned and ran.
MS. KRAUTHAMER: All right.
THE COURT: Can I just offer that to you just so it's (away from recording microphone).
MS. KRAUTHAMER: I appreciate that. I apologize for -
THE COURT: That's all right. That's all right.
At a hearing conducted to settle the record, the trial judge provided the following as the text of his missing instruction:
. . . I think that my recollection is . . . that I was explaining to Ms. Krauthamer at that point why I wanted to halt Officer Grainger in midstream because I didn't know what he was going to say. There was no question pending, and I wanted to explain to her why I did that.
. . . [M]y recollection is that Ms. Krauthamer . . . was going to ask Officer Grainger thereafter to only respond to direct questions, so that we didn't have a soliloquy from the witness chair from the officer.
We find no error in the trial judge's conduct of the trial at this point, but instead view his instructions to the prosecutor as a commendable effort to exercise reasonable control over the interrogation of a witness so as to "(1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect [the witness] from harassment or undue embarrassment." N.J.R.E. 611(a); State v. Laws, 50 N.J. 159, 181 (1967), modified on other grounds, 51 N.J. 494, cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed. 2d 384 (1968); State v. Guido, 40 N.J. 191, 207 (1963).
Defendant argues additionally that that the trial judge committed plain error when, to satisfy an element of the charge of second-degree possession of a weapon by a convicted felon, he permitted the prosecutor to introduce a certified copy of a 2004 judgment of conviction pertaining to defendant, without calling a witness to testify to the document's authenticity.*fn2 Defendant does not assert that the judgment was mistakenly entered or otherwise untrustworthy.
We decline to address, at length, defendant's arguments on this point, finding them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We note only that the document was properly introduced as a self-authenticated public record pursuant to N.J.R.E. 902 and 1005. See also State v. Ingenito, 87 N.J. 204, 224 (1981) (concurring opinion of Schreiber, J.) (recognizing that a "prior conviction may . . . be introduced when the fact of conviction itself constitutes an essential element of proof in the subsequent prosecution."). As a final matter, we find no evidence that any error that may have existed in the introduction of the certified judgment was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Because we find no error in the introduction into evidence of the certified judgment of conviction, we find no ineffective assistance of counsel resulting from defense counsel's failure to object to that introduction. Defendant has failed to demonstrate both deficient performance by defense counsel and a reasonable probability that the deficiencies materially contributed to defendant's conviction on this weapons possession charge. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).
On appeal, defendant also makes a claim of prosecutorial misconduct arising, after defense counsel challenged Officer Grainger's credibility by pointing to alleged inconsistencies in his testimony, when the prosecutor argued:
You could find the defendant not guilty because you might buy the argument that the police lied. A second possibility is this is a case of mistaken identify. They got the wrong guy. The third possibility I'm going to wait on. I'll tell you about that in a little bit.
The prosecutor then reviewed Grainer's testimony, and next addressed his credibility, arguing:
Was he vague in any of those details? Was he hesitant, either when I asked him questions on my direct examination or when Counsel questioned him on cross-examination? He didn't change his story. . . . The officer wasn't vague. He wasn't hesitant. He told that story three times - three times . . . . His demeanor never changed. His tone of voice didn't change. Nothing about it changed.
I submit to you, ladies and gentlemen, if Officer Grainger was going to come here and lie to you about what happened that morning, why wouldn't he give you a story that was easier to tell, one that wouldn't require the use of an aerial map? Why wouldn't he just tell you a story that the gun was found on the defendant's person, in his pocket, in his waistband? Why tell us - why make up this story, then, the gun was dropped and this chase ensued, the story that he had to use a map to explain?
On appeal, defendant claims that the prosecutor's statements were "clearly and unmistakably improper" because they focused the jury's attention, not on an evaluation of the evidence, but on whether the officer had lied under oath.
We disagree with defendant's analysis, finding nothing improper in the prosecutor's response to defense counsel's closing. State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). Although we have recognized that we must assess statements concerning the credibility of police officers very carefully, id. at 285 (citing State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993)), we discern no prosecutorial excess in the arguments presented, which were firmly founded on the evidence and in no respect either vouched for the officer or suggested that he had no motive to lie. See, e.g., State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005) Hawk, supra, 327 N.J. Super. at 285; State v. West, 145 N.J. Super. 226, 234 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977).