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State v. Kabre

December 22, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AMIDOU KABRE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-0450.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2009

Before Judges Baxter and Alvarez.

Defendant Amidou Kabre appeals from his April 4, 2008 conviction on a charge of third-degree theft by receiving a stolen automobile, N.J.S.A. 2C:20-7, for which the judge imposed a four-year term of imprisonment. We reject defendant's claim that trial judge erred by denying defendant's motions for acquittal at the conclusion of the State's case and at the time of sentencing. We do, however, accept defendant's contention that the judge's denial of his in limine motion allowed unfairly prejudicial evidence to come before the jury. We reverse defendant's conviction and remand for a new trial.

I.

In the early morning hours of August 25, 2006, Cherry Hill Police Officer Thomas McClintock was notified by a dispatcher that the Delaware River Port Authority (DRPA) police had broadcast a report that a Mercedes stolen two hours earlier in a carjacking incident in Philadelphia was headed east over the Ben Franklin Bridge into New Jersey. Because the vehicle in question was equipped with a global positioning system, DRPA police were able to provide a fairly precise description of the vehicle's path. Anticipating its route of travel, McClintock headed slightly north, and began to observe oncoming traffic. Almost immediately, McClintock and Officer Robert Kempf observed a silver Mercedes that matched the description of the vehicle that had been recently carjacked in Philadelphia.

After effectuating a motor vehicle stop, they directed the driver, defendant, to exit the vehicle. McClintock described defendant as "extremely, extremely nervous[,] . . . shaking, he was sweating." According to McClintock, defendant "appeared overly nervous for the situation." McClintock asked defendant if he owned the vehicle, to which defendant responded in the negative, explaining that "a friend from Michigan gave him the car." When McClintock asked defendant "where exactly his friend gave him this car," defendant responded "Philadelphia." McClintock pursued that answer by inquiring how a friend from Michigan could give him the car in Philadelphia; defendant had no answer. McClintock described defendant as "still nervous" and "defensive" while answering the questions McClintock posed.

While McClintock was examining the New York identification card defendant produced in response to McClintock's request for a driver's license, Kempf told McClintock that he had found a Pennsylvania license plate wrapped in a nearly-transparent plastic bag on the floor of the vehicle adjacent to the front passenger's seat. The license plate "was wet and dirty." The dispatcher confirmed that the license plate Kempf found was the same plate that had been affixed to the Mercedes at the time of the carjacking.

In the course of a search for additional identification, Kempf opened a black bag on the front passenger seat, which defendant said was his. Inside the bag, Kempf found a stack of approximately fifty business cards wrapped in a rubber band, the majority of which were for salvage yards, insurance companies and locksmiths. Inside the bag Kempf also found several titles to motor vehicles and some salvage titles, one of which had been issued in Massachusetts for a 2002 Volkswagen Jetta. Kempf also found a dock receipt with a vehicle identification number (VIN) matching the Jetta, along with dock receipts for three other vehicles that had been shipped from New York City to a country in Africa by Unique World Limited Shippers. The dock receipts for all three vehicles shared the same VIN as the Jetta. Kempf added that the Jetta had been purchased by defendant for $975. Last, Kempf testified that inside the black bag he also found another license plate, two license plate screws and handwritten notes describing other vehicles, salvage dealers and insurance companies.

At trial, defendant testified about the bundle of business cards for salvage yards and locksmiths that was found in his black bag. He maintained that he had innocently accumulated a number of business cards since coming to the United States. He had no explanation for the unusual nature of the cards, and stated that the dock receipt relating to the Jetta belonged to an acquaintance, whose name he could not recall. He also explained that on the evening of his arrest, he had originally planned to take the bus home to New York, but that a friend of his named Miguel had offered him a ride. Defendant did not know Miguel's last name or what Miguel did for a living, even though he claimed that Miguel was a customer who had been in defendant's jewelry store in Philadelphia almost every weekend for six months. Defendant explained that he waited for Miguel until it was too late to catch the bus. When Miguel finally arrived, Miguel explained he had decided not to drive to New York, but instead to stay overnight in Philadelphia. He offered to lend defendant his Mercedes. Defendant agreed, explaining that he had planned to return the car to Miguel the next day. Defendant testified he never saw Miguel again after Miguel lent him the car on the night in question.

Before the parties gave their opening statements, defendant moved in limine for an order barring the State from introducing evidence of the contents of defendant's black bag, namely the dock receipts, the bundle of fifty business cards for salvage yards, locksmiths and insurance companies, and a license plate for another vehicle. In addition to arguing that "everything that he had in his possession was legitimate" because he owned the Jetta and had merely shipped it to his brother in Africa, defendant also argued that such evidence would be unfairly prejudicial. He asserted:

If the State is able to bring that in . . . that would be highly prejudicial against [defendant] because the jury is liable to insinuate [sic] . . . from these documents, which are completely legitimate, that [defendant] was doing an illegitimate or--or had some illegitimate plans for the vehicle which he was in, when the documents themselves, prima facie don't speak to that at all.

[I]t's not like [defendant] had some fake or false documents. These were real documents. I think that the jury may then insinuate [sic] that [defendant] had . . . [an] intention to ship this [Mercedes] to Africa.

In response to that argument, the State asserted that the documents in defendant's black bag established defendant's knowledge that the Mercedes was probably stolen and that the documents "show that he knew the car was stolen based on his plans for it which is established by those documents." Defendant responded that the admission of such evidence "creates a really bad circumstantial situation where [jurors] are gonna [sic] say, automatically, . . . he is involved in this. And he's not ...


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