November 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS STILES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-09-0839.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Lisa, Baxter and Alvarez.
Tried to a jury, defendant Thomas Stiles was convicted of conspiracy to commit first-degree murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-2. He was sentenced on December 16, 2005, to a custodial term of seventeen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a, consecutive to the sentence he was then serving. We now reverse.
Defendant and his former wife, Diane Stiles (Stiles), separated in 1999. Since that time, the parties have been on poor terms, particularly in relation to the custody and visitation of their children.
In May 2003, while detained at the Cumberland County Correctional Facility (CCCF) on unrelated charges, defendant became the target of a Cumberland County Prosecutor's Office (CCPO) investigation. The investigation began when defendant's cellmate, Carlos Davila, reported that defendant was attempting to hire him to murder Stiles. Defendant gave Davila a hand-drawn map depicting the location of his ex-wife's home and provided a written description of her appearance. When Davila first came forward with the information, he asked CCCF Lieutenant Susan Luciano for some unspecified "consideration" in exchange for his cooperation. Eventually, Davila agreed to wear a concealed microphone and to record his conversations with defendant about the plan.
On May 13, 2003, Davila spoke to defendant at two separate locations while wearing a concealed microphone at the county courthouse. The entire conversation at the first location, as well as the first ten to fifteen minutes of the conversation at the second location, was not taped because the operator forgot to push the record button. The recorded portion of the conversation at the second location was of extremely poor quality, even after extensive enhancement prior to trial. The recorded conversation was not transcribed, but the enhanced tapes were played to the jury over the course of an hour. At times only fragments of sentences or intermittent words were audible.
Defendant was charged with conspiracy on May 21, 2003. Bail was set at $200,000, and he was questioned after processing by the CCPO. When interviewed, defendant waived his Miranda*fn1 rights and provided a taped statement to CCPO Detective George Chopek and Sergeant Walter Wroniak, who also conducted the pre-tape interview. Defendant admitted that he agreed to pay Davila $5000 to murder Stiles; however, he denied that the conversations were serious, or that he ever had the intention or ability to pay Davila to commit the crime.
Defendant filed a pre-trial motion in limine seeking to redact the portion of his taped interview in which he referred to Stiles's accusation that he molested their daughter. The court denied the redaction on the theory that the accusation was not a prior bad act subject to Evidence Rule 404(b) analysis, and that it was otherwise admissible to establish motive.
Defendant also sought redaction of the portions of the taped interview referring to the claims of domestic violence that he and Stiles made against each other immediately after their separation. This application was also denied by the trial judge. The court did agree, however, to give a limiting instruction as to domestic violence after the taped interview was played to the jury.
At trial, Chopek testified that Davila "wanted nothing" in exchange for his cooperation with investigators, "[w]hich then lends more credibility to the informant." He also stated that investigators knew defendant wanted to pay Davila to kill his ex-wife, not only because of his conversations with Davila, but based on "prior information" as well.
Chopek acknowledged that it was difficult to understand the body wire recordings, but insisted that he understood them since he was present when they were made and that "it was pretty clear what [defendant's] intentions were." Chopek testified that in the pre-taped interview, defendant denied that he had drawn a map of the location of Stiles's house, or written a description of her, but then admitted it once he was on tape. Chopek claimed that defendant's taped interview conflicted with what was said in the wire recordings and repeatedly referred to the statement as defendant's "story." On cross-examination Chopek said:
But based off of prior information and the consensual interception, we already knew that [defendant] had agreed to pay him and the down payment and get him the money when he got out of jail. So these are the things he's saying during the interview and I'm allowing him to tell the story. But we already knew them to be different than the conversation we prior heard.
Q: And that consensual interception... you would agree with me, is hard to hear?
A: Yes, but I heard it live so... I pretty much know what was said throughout the thing.
Q: But the proof is what's on the tape, true?
A: Well, I believe the proof is also my credibility and what I heard. And that's what I heard.
Q: Well, we'll have an opportunity to listen to the tape and you'll agree with me it will be difficult to hear?
A: It will be. It will be difficult to hear.
On redirect, Chopek said:
Q: And... I think you already covered this yesterday, but just so the jury understands it,... you can listen to this consensual between these two individuals?
A: Yes. The purpose of a consensual, especially with an inmate, is... you never take somebody's words or anything.
And this was a way for us to shore up whether he was telling us the truth, you know. And that's the benefit to [defendant] as well. Nobody wants to do anything against somebody without the evidence because... I don't know either man and I don't know who's telling the truth and who's not. And that's why we [follow up] with that. And at the time during those consensuals, we're listening closely and we monitor through either headphones or through our radio because as I explained... we don't want to miss anything. And we try our best to make sure we're getting the story straight so we can confirm who is telling us the truth and who is trying to deceive us.
In summation, the prosecutor made the following statement:
[T]here is a victim in this crime.... She's the ex-wife of [defendant].... She has to live the rest of her life -- when that doorbell rings, it's not -- maybe next time it won't be Sergeant Parent and Detective Chopek of the Cumberland County Prosecutor's Office. It could be Carlos Davila or someone just like him. A career criminal that wants money and someone has offered it to him.
Errors must be "clearly capable of producing an unjust result" in order to warrant reversal. R. 2:10-2. This is true for both errors brought to the trial court's attention and errors not raised before the trial court. Both will be disregarded unless there is a reasonable doubt that the error contributed to the verdict. State v. Macon, 57 N.J. 325, 336-39 (1971).
On appeal, defendant raises the following points:
DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BECAUSE DETECTIVE CHOPEK GAVE HIS OPINION AS TO THE TRUTHFULNESS OF THE STATE'S MAIN WITNESS. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10 (Not Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THE INTERCEPTED CONVERSATION ADMISSIBLE BECAUSE A SIGNIFICANT PORTION OF IT WAS MISSING AND EVEN THE ENHANCED VERSION PLAYED TO THE JURY WAS SO SUBSTANTIALLY INAUDIBLE AS TO RENDER IT UNTRUSTWORTHY.
BECAUSE THE RECORDED CONVERSATION HAD SUCH SEVERE AUDIBILITY PROBLEMS, AND BECAUSE CHOPEK TESTIFIED TO HIS RECOLLECTIONS OF THE SUBSTANCE OF THE CONVERSATION, THE COURT SHOULD HAVE CAUTIONED THE JURY TO SCRUTINIZE THE EVIDENCE WITH CARE. (Not Raised Below).
THE PROSECUTOR'S COMMENTS IN SUMMATION, WHICH SUGGESTED THAT DEFENDANT WOULD CONTINUE TO POSE A THREAT TO HIS EX-WIFE FOR THE REST OF HER LIFE AND SHOULD THEREFORE BE CONVICTED, CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947), ART. I, PAR. 10.
THE COURT'S REFUSAL TO EXCISE FROM DEFENDANT'S STATEMENT HIS REFERENCE TO "MY PAST" AND "MY OTHER CASE AND MY WIFE TRYING TO SAY I MOLESTED MY DAUGHTER... [AND] ME GOING TO COURT," AS WELL AS ITS INADEQUATE LIMITING INSTRUCTION CONCERNING THE JURY'S USE OF THE EVIDENCE OF DEFENDANT'S HISTORY OF FIGHTS WITH HIS WIFE, DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
THE COURT['S] DECISION ADMITTING DEFENDANT'S TAPE RECORDED STATEMENT VIOLATED DEFENDANT'S STATE PRIVILEGE AGAINST SELF-INCRIMINATION UNDER STATE V. REED, 133 N.J. 237 (1993) BECAUSE THE STATE KNEW THAT DEFENDANT WAS REPRESENTED BY COUNSEL, WHO WAS READILY AVAILABLE AT THE TIME OF HIS INTERROGATION, AND KNOWINGLY THWARTED HIS ATTORNEY-CLIENT RELATIONSHIP.
THE IMPOSITION OF A CONSECUTIVE SENTENCE ABOVE THE MID-RANGE FOR A FIRST DEGREE CRIME CONSTITUTES AN ABUSE OF DISCRETION.
In his pro se supplemental brief, defendant makes the following additional point:
PETITIONER CONTENDS THAT AUTHORIZATION FOR AN ORAL INTERCEPTION WAS UNLAWFUL AND TRIAL COURT VIOLATED HIS UNITED STATES CONSTITUTIONAL RIGHTS AND THOSE RELATED WITHIN STATE OF NEW JERSEY CONSTITUTIONAL [SIC] AND IT'S [SIC] LAWS BY ADMITTING SUCH AND EVIDENCE RELATED TO SUCH INTERCEPT INTO TRIAL [SIC].
Just as in State v. Frisby, 174 N.J. 583 (2002), this case was a "pitched credibility battle." Id. at 596. Therefore, "[a]ny improper influence on the jury that could have tipped the credibility scale was necessarily harmful and warrants reversal." Ibid.
The State's case rested primarily upon the testimony of Davila, an individual with a significant criminal history.*fn2 The State also had available the wire recordings and defendant's own taped statement as additional proof. The body wire conversations, however, were at best difficult to understand; the jury did not listen to the tapes during their forty-five-minute deliberation. In his self-serving recorded statement, defendant attempted to explain away the import of his conversations with Davila, asserting he lacked both the intent and the financial resources to pay Davila to murder his ex-wife.
Chopek's testimony, therefore, became pivotal. And he vouched for Davila's credibility, and attacked the credibility of defendant's version of events. By doing so, in our view, Chopek impermissibly interfered with the jury's ability to independently weigh credibility. Chopek presented himself as more of an expert witness than a fact witness, by endorsing Davila's testimony as believable and casting aspersions on defendant's credibility. As he told the jury, "the proof is also my credibility and what I heard."
In Frisby, the defendant was charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, in connection with the death of her son. Frisby, supra, 174 N.J. at 587. After conducting their investigation, police decided not to charge the child's father, although the defendant alleged that the father was supposed to be watching the baby at the time of death. Id. at 589. One of the investigating officers testified that the decision was made because "'[we] didn't feel that there was enough evidence, that he was more credible than Ms. Frisby at that point.'" Id. at 590. The Court found that statement alone impermissibly tainted the trial by providing the jury with a pre-tailored credibility assessment. A representation by an investigating officer endorsing the innocence of one party, thereby implying the guilt of another, is simply not allowed. Id. at 594.
In this case, Chopek endorsed the credibility of Davila and, inferentially, defendant's incredibility and guilt when he recalled, for example, that Davila did not want any favors in exchange for his cooperation in the investigation. As he put it, this gave "more credibility to the informant." Chopek said that the statements made to the CCPO by defendant during the investigation were merely defendant's "spin," because they were contradicted by the poor-quality intercepted conversations, which Chopek said he remembered, and which he said he considered to be inculpatory. Chopek also testified that additional, undisclosed information supported defendant's guilt; however, the jury was never told the nature of this additional information so they could make an independent determination of its merits. Chopek's statements impermissibly tainted this trial.
For an audio recording to be admissible, "it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5)... that the statements were elicited voluntarily and without any inducement." State v. Driver, 38 N.J. 255, 287 (1962).
Although it is the norm to do so,*fn3 no transcript was provided to the jury of the body wire recordings. The recordings were so poor that the State had them enhanced prior to trial. The enhancement expert acknowledged that "this was probably only about a 60-70 percent success as far as all cases I've worked on." He testified that "[t]he amount of distortion and noise in the original recording was considerable. I was able to reduce quite a bit of it, but not all of it." Without reaching the issue of whether the whole of the tapes should have been played to the jury because of significant audibility problems, or whether the trial judge should have required the State to supply transcripts, it is nonetheless clear that because of these problems the jury would naturally rely upon Chopek's summary of the contents of the tape. With the exception of sentence fragments and individual words, the recordings are nearly incomprehensible. The audibility problems just make Chopek's representations all the more improper.
Defendant also contends that the court should have cautioned the jury to scrutinize the recorded conversations with great care because of both the audibility problems and Chopek's characterizations. Defendant did not request a special charge be fashioned by the judge focusing the jury's attention on the intercept. Therefore, this claim must be scrutinized pursuant to the plain error analysis.
State v. Kociolek, 23 N.J. 400 (1957), requires that a jury be instructed to closely scrutinize oral statements offered as evidence because of the generally recognized risk of inaccuracy and errors in communication. As the model jury charge says in pertinent part, incorporating the language from the opinion, the change in even a single word can change "'the true meaning of even the shortest sentence.'" Id. at 421-22 (citation omitted). In this case, where no transcript was provided to the jury, and where they heard the poor-quality recording only once, an instruction about the unreliability of the spoken word might have been helpful to the jury. In light of Chopek's endorsement of Davila's credibility, his characterization of defendant's statements as nothing more than "spin," and his comments about defendant's intent based on his recollection of the recorded conversation, we cannot be certain that the omission did not unfairly contribute to the verdict. State v. Macon, supra, 57 N.J. at 336-38. The failure to give the instruction in this unusual combination of circumstances was therefore plain error.
Defendant contends the trial court erred in denying his motions in limine. He sought to compel the State to redact references to domestic violence and references to Stiles's accusation that he molested their child. The court did give a limiting instruction with regard to the domestic violence allegations.
Evidence having probative value on a material issue is relevant, and all relevant evidence is admissible unless excluded by another rule or statute. State v. Castagna, 400 N.J. Super. 164, 174 (App. Div. 2008). Evidence Rule 403 reads: "Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Rule 403(a) requires "the balancing or weighing of probative value against undue prejudice and places the burden on a party urging exclusion to show that the prejudice substantially outweighs the probative value to justify exclusion of the evidence." State v. Castagna, supra, 400 N.J. Super. at 174. Additionally, Rule 404(b) requires that a trial judge "engage in 'a careful and pragmatic evaluation'[of the evidence]... by weighing... probative value against apparent or undue prejudice," even when the evidence is otherwise admissible under Rule 403. Id. at 175. Our application of these principles leads us to conclude the evidence should have been excluded.
The redaction of references to domestic violence and child molestation would not have left the State without proof of defendant's motive to kill his former wife. Defendant's own words in his tape recorded interview explained that his hostility towards Stiles stemmed from bitter conflicts about their children, a commonplace occurrence in today's society and a substantial motive. That evidence was highly probative and not at all prejudicial. Davila actually explained to the jury that his discussions with defendant about the murder began "by his telling me his trouble with his children." And as Davila went on to say, "I just asked him why he just don't kill her."
The references to domestic violence and child molestation were highly prejudicial, and not necessary in light of the other equally probative and less prejudicial evidence available. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 500 (1999). The references to domestic violence and child molestation could easily create "undue prejudice, confusion of issues, or mislead the jury." N.J.R.E. 403. They should have been excluded, as the probative value was significantly outweighed by the potential prejudice to defendant.
Furthermore, as defendant points out, although the court did give the jury a limiting instruction as to the alleged domestic violence, the court merely said that the jury should not assume that defendant had been charged with domestic violence simply because confrontations occurred. The judge did not tell the jury that they could not use this evidence in order to find defendant had a propensity towards violence and was therefore more likely than not to have committed the crime. The judge did not explain to the jury that just because of these past conflicts, they could not conclude that defendant had a propensity to violence. See State v. Castagna, supra, 400 N.J. Super. at 183. We therefore conclude that the denial of defendant's motions in limine was error.
In his summation, the prosecutor pointed out that this was not a victimless crime. He said that for the rest of her life Stiles would have to live with the knowledge that "when that doorbell rings," it might not be police officers, but rather, "Davila or someone just like him. A career criminal that wants money and someone has offered it to him." Defense counsel objected to the statement and requested a curative instruction, which request the court denied.
In our view, the prosecutor impermissibly shifted the focus away from whether the State had met its burden of proof to establish the statutory elements beyond a reasonable doubt, to the need to protect the victim from further harm in the future. This shift in focus is improper. See, e.g. State v. Rose, 112 N.J. 454, 520-21 (1988); State v. Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003).
Although this shift in focus by the prosecutor was improper, the inquiry does not end there. See State v. Smith, 167 N.J. 158, 181 (2001). We must look further to determine whether the misconduct was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).
In determining whether the statement was sufficiently egregious to warrant reversal, we must take into account whether timely and proper objections were raised, whether the remarks were 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). In this case, timely and appropriate objections were made, but the remarks were neither withdrawn, the objection sustained, nor any instruction given to the jury.
In the context of a trial in which a police officer vouched for his own credibility and that of the State's principal witnesses, as well as expressed his disbelief of defendant's taped interview, the prosecutor's argument that the jury should convict defendant in order to protect the victim in the future warrants a new trial. The inflammatory notion that a conviction was necessary to protect the victim had the capacity to produce an unjust result.
We do not reach other issues raised by defendant in light of our discussion above. We reverse defendant's conviction and remand the matter for a new trial.