January 7, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE EMMONS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment, Nos. 06-08-1258 and 06-01-0046..
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2009
Before Judges Skillman and Fuentes.
Defendant Tyrone Emmons was tried before a jury and convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4).*fn1 In a bifurcated proceeding, the same jury found defendant guilty of second-degree possession of a weapon by a person previously convicted of one of the offenses listed in N.J.S.A. 2C:39-7(a).
The trial court sentenced defendant to a term of eight years, with three years of parole ineligibility, for the conviction of second-degree possession of a firearm for an unlawful purpose. The court also imposed a term of seven years, with five years of parole ineligibility, for the conviction of second-degree possession of a handgun by a previously convicted person, to run consecutive to the eight-year term; this resulted in an aggregate sentence of fifteen years with eight years of parole ineligibility.
We gather the following facts from the record developed before the trial court.
In the early morning hours of October 26, 2005, Lisa Christofferson and a man known to her as "Rasul," subsequently identified as Melvin Hyman, were standing on the corner of Lee Avenue and Handy Street in New Brunswick when they heard what sounded like "firecrackers." According to Christofferson, Rasul suddenly told her to run; when she turned around, she saw a man running towards her repeatedly shooting his handgun "who didn't stop shooting." Christofferson continued running until she reached Baldwin Street, where she took refuge behind two parked cars.
The shooter eventually reached the area where Christofferson was hiding. Christofferson gave the following account of what transpired when she realized that the shooter had discovered her whereabouts:
As I was ducking he, I thought he had left, and he came up to the car, and I had a hood on my head. I took my hood off to try to show him I was a girl. I didn't know what was going on, you know. I started begging for my life and he started trying to shoot the gun but there were no more bullets left and he just said F. At this point Christofferson was able to look at her attacker "right in his face" and "[h]e looked right at [hers]." The assailant did not wear a mask and made no other attempt to conceal his face.
This experience left Christofferson emotionally traumatized. As she leaned against a wall and tried to regain her composure, Christofferson saw a passing police car with two officers inside. She immediately flagged down the police car and reported the incident to New Brunswick Police Officers Edward Bobadilla and Anthony Abode. Christofferson described the assailant as an African American man wearing a white shirt, black coat, black hat, black pants, and black boots.
The officers immediately radioed the assailant's description*fn2 to other police units in the area. They then invited Christofferson to ride in the police car to see if she could identify her assailant. According to Bobadilla, a few minutes later Officer Shah reported on the police radio that he had apprehended an individual matching the description given by Bobadilla. This individual proved to be defendant, who was detained riding a bicycle approximately two blocks from 162 Baldwin Street.
Christofferson, who was by then a passenger in Bobadilla and Abode's patrol car, arrived at the location where defendant had been detained and immediately identified him as her assailant. She indicated to the officers that the she was "a hundred percent positive" that the man in police custody was the person who had assaulted her approximately ten minutes earlier. She based her identification on the man's face and the clothing he was wearing. Christofferson could not provide a motive for the attack and no evidence of a motive was ever proffered to the jury.
Later, on the morning of defendant's arrest, a woman reported to the police that her six-year-old son had found a handgun in the backyard of her residence on Handy Street. The weapon was a .38 caliber revolver with two rounds in its cylinder chamber; the police did not detect any fingerprints on the handgun. Christofferson identified this handgun as the one used by the assailant.
Another resident of Handy Street testified to having heard shots during the night of the incident. In the morning, she found bullet holes in her car and in a sneaker box she had in the car's trunk. The bullet recovered from this scene was a .45 caliber round, which does not match the .38 caliber revolver found by the child in his backyard.
A resident of Baldwin Street testified that, on the morning after the alleged incident, she found a bullet on the passenger seat of her car that had caused the car's window to shatter. Ballistics tests performed on this bullet were inconclusive. A resident of Lee Avenue found bullet holes in her living room walls. A bullet recovered from that house matched the revolver identified by Christofferson.
Also on this morning, a man, initially identified as Dwayne Johnson, was treated in the emergency room of a local hospital for two gunshot wounds in his left forearm. Johnson told the medical staff who treated him, and the police officer who responded to the hospital's call, that he was shot in the arm while riding his bicycle on Handy Street. Johnson could not identify the shooter and refused further medical treatment.
Defense counsel's strategy at trial was based entirely on misidentification. Toward that end, counsel emphasized the lack of physical evidence linking defendant to the crime. Analysis conducted by a defense expert did not find gunpowder residue on defendant's jacket. Although the State presented rebuttal testimony on this issue, the question remained a contested one before the jury.
Despite her importance to the prosecution's case, Christofferson was so uncooperative that the prosecutor was forced to seek judicial relief, under N.J.S.A. 2C:104-1, to compel her attendance at trial as a material witness. Christofferson was detained for two days before the commencement of the trial and thereafter released to her home on the condition that she remain in contact with the prosecutor's office. She was escorted to the courthouse on the day of trial by investigators from the prosecutor's office.
Before Christofferson took the stand to testify, defense counsel made the following application to the court:
My issue has to do as always with Lisa Christofferson[.] [A]t this point we found out she has pending charges on Friday in North Brunswick Municipal Court, at least a shoplifting [charge] and maybe more than that. I want to cross examine her on what's going on in North Brunswick or[,] at least I guess depending on how it fleshes out[,] recall her thereafter but I don't know if this is a theft by deception or some other deceptive element crime that may get sent up here and may be relevant to her ability to be truthful. I wanted to put it on the record now.
THE COURT: You can't cross examine on a pending charge, only criminal conviction.
After Christofferson completed her testimony, defense counsel indicated to the court that he intended to call her as a witness as part of the defense's case and requested that she remain available under subpoena. When Christofferson expressed her reservation about being a witness in favor of defendant, the trial court admonished her saying that she was "not a witness to help or hurt anybody, . . . [y]ou're just a witness to tell the truth."
Two days after his initial ruling that barred defense counsel's proposed line of questioning concerning Christofferson's shoplifting charge, the trial judge announced that, upon reflection and additional research, he had reconsidered his decision. The judge indicated that Christofferson's pending municipal charge was relevant and admissible evidence on the question of bias in favor of the State. The court thus directed the prosecutor to produce Christofferson for further examination on this subject. Without objection by the State or defense counsel, the court agreed to permit Christofferson to testify as soon as she appeared in court.
At the start of the following court session, the prosecutor announced to the court and counsel that despite Christofferson's assurances to him that she would return to court when directed, she had failed to do so. Defense counsel reaffirmed his desire to cross-examine her on the shoplifting issue and other areas affecting her credibility. The prosecutor indicated that his office would continue to search for Christofferson.
At a break in the proceedings, the court held an N.J.R.E. 104 evidentiary hearing to consider the admissibility of testimony from a prosecutor's office investigator concerning additional discovered information that impacted Christofferson's credibility. According to Investigator Jennifer Sessa, when a computerized criminal-record check was conducted on Christofferson, based on information she provided, the system matched Christofferson's information to two different individuals with different "FBI numbers"; Christofferson's social security number also matched to both her name as well as another person.
Although reserving his right to call Christofferson, defense counsel requested that the court permit him to question Investigator Sessa, in the presence of the jury, concerning her findings. The trial court denied counsel's application, ruling that this information needed to be elicited directly from Christofferson. After defense counsel concluded his case, he again objected to proceeding to closing arguments without the opportunity to cross-examine Christofferson on the matters discussed and ruled admissible by the court. The court overruled the objection and gave the following explanation in support of its ruling:
Regardless of whether she had a warrant. . . Miss Christofferson apparently is not able to be located and at this point in time I ask she be brought here so she can be examined on the issue of bias as I put on the record last week.
The bottom line is, number one, does the witness have a "vulnerable" status[,] which means is that person reasonably within the criminal justice system so that he or she may or may not form an opinion about getting expected treatment from the State. In this case the witness would have been vulnerable on a charge in the North Brunswick Municipal Court for [a] disorderly persons offense of shoplifting which is not a crime.
In this case the Prosecutor's Office has no participation at all in the system in which Lisa Christofferson is involved. She's involved in a Municipal Court case with a Municipal Court prosecutor and a Municipal judge. They are not part of the State judiciary. They are Municipal part-time judges and the prosecutors have nothing to do with the County Prosecutor's Office. The defense is not prejudiced by not being able to go into that area. If Lisa Christofferson is able to be produced, and I ask that the Prosecutor's Office continue to look for her before the trial concludes, I will permit that however unlikely cross examination for bias but I don't find it rises to the level where the Court would have to adjourn until we could produce Lisa Christofferson as a witness in the case.
The testimonial phase of the trial thereafter ended without affording defendant any further opportunity to question Christofferson.
Against these facts, defendant now raises the following arguments on appeal.
THE IMPROPER RESTRICTION OF CROSS-EXAMINATION OF STATE'S EYEWITNESS LISA CHRISTOFFERSON CONCERNING A PENDING CHARGE INFRINGED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND PRESENT A DEFENSE AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1,9[,]10.
THE TRIAL COURT'S DECISION TO ALLOW A CRITICAL DEFENSE WITNESS TO TESTIFY IN PRISON GARB DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947)[,] ART. I, PARS. 1,9,10. (Raised in Part Below)
INADEQUATE JURY INSTRUCTIONS ON THE OFFENSE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 1,9,10. (Not Raised Below)
THE UNNECESSARY INTRODUCTION OF THE UNSANITIZED DETAILS OF DEFENDANT'S PRIOR CONVICTIONS TO PROVE HIS FORMER FELON STATUS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947)[,] ART. I, PARS. 1,9,10. (Not Raised Below)
IMPROPER REMARKS IN THE PROSECUTOR'S OPENING AND SUMMATION, DESIGNED TO URGE THE JURY TO CONVICT TO PROTECT SOCIETY FROM VIOLENCE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS. 1,9,10. (Not Raised Below).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We agree with defendant's argument as to Point I and reverse. We are satisfied that under the circumstances presented here, defendant's constitutional right to confront the witnesses against him was violated when Christofferson failed to appear in court as directed and failed to submit to further interrogation by defense counsel on matters affecting her credibility.
We start our analysis by reaffirming the bedrock principles embodied in the Sixth Amendment of the Constitution of the United States.
The Sixth Amendment provides that in a criminal prosecution, the accused has the right "to be confronted with the witnesses against him." That right embodied in the Confrontation Clause expresses a preference for the in-court testimony of a witness, whose veracity can be tested by the rigors of cross-examination. It has long been held that cross-examination is the "greatest legal engine ever invented for the discovery of truth." [State ex rel. J.A., 195 N.J. 324, 341-42 (2008) (internal citations omitted).]
The same rights guaranteed under the Sixth Amendment are equally guaranteed under Article I, Paragraph 10, of our State Constitution. State v. Nyhammer, 197 N.J. 383, 412 (2009), cert. denied sub nom., Nyhammer v. New Jersey, ___ U.S. ___ 130 S.Ct. 65, 175 L.Ed. 2d 48 (2009).
With these principles as our guide, we now turn to the facts at issue here. Christofferson was the lead witness called by the State and the only witness who directly identified defendant as the shooter. Her testimony, on at its face, did not provide a motive for this strange, unprovoked attack; her alleged companion that evening did not come forward to support her testimony; and forensic evidence did not corroborate her account of the events, i.e., the caliber of the bullets found at the scene did not match the weapon she identified defendant had used in the attack. Impeaching her credibility as a witness was thus a key component of the defense's strategy.
The trial court correctly recognized defendant's right to question Christofferson on matters that might "color [her] testimony in favor of the prosecution." State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001). Reversing its earlier erroneous ruling, the court declared that defendant was entitled to question Christofferson about her open charge of shoplifting and have the jury consider whether her testimony in this trial may be "colored" to curry favor with the Sate on this seemingly unrelated matter. An equally relevant area of inquiry was information discovered by the prosecutor's investigator concerning Christofferson's possible use of other names or social security numbers. This may have led to evidence undermining her veracity.
Upon discovering Christofferson's absence, an apparent willful disregard of the court's instruction to make herself available for further questioning, the court should have either adjourned the proceedings for a reasonable time to permit defense counsel and/or the prosecutor to locate her or, if she could not be produced for further questions, declare a mistrial.*fn3
Because this error is, in and of itself, sufficiently prejudicial to reverse defendant's conviction and remand for a new trial, we need not reach the remaining arguments raised by defendant in this appeal. In the interest of completeness, we note that the arguments raised in Points II, III, and IV are without merit and do not present legal grounds to vacate defendant's conviction.
As to Point V, we are compelled to comment on the remarks spoken by the prosecutor as part of his opening statement to the jury. We do so to avoid future missteps in the prosecution of this case. In his opening statement, allegedly quoting the late Senator Robert F. Kennedy, the prosecutor admonished the jurors that "[A] city that surrenders to violence is a city that is resigned to failure." The prosecutor repeated this admonition at the end of his remarks.
Prosecutorial misconduct warrants reversal when it is so egregious that it operates to deprive a defendant of a fair trial. State v. Nelson, 173 N.J. 417, 463 (2002); State v. Ramseur, 106 N.J. 123, 322 (1987) cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). In order to determine whether the particular misconduct was sufficiently egregious to warrant reversal, we "must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999).
Here, the prosecutor's comments were rhetorically excessive and clearly improper because they were intended to inflame the jury's passions against defendant by invoking the words of a beloved and respected public figure who was assassinated by being shot in the head with a handgun. A prosecutor's introductory comments to the jury should be restricted to a recitation of the evidence the State intends to produce at trial that establishes a defendant's guilt beyond a reasonable doubt. Rhetorical excesses and inflammatory language have no place in a courtroom.
Reversed and remanded.