February 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAROLD B. POWELL, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-08-0808.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2010
Before Judges Lisa and Baxter.
Defendant was charged in a six-count indictment as follows:
(1) third-degree receiving stolen property (a motor vehicle), N.J.S.A. 2C:20-7a; (2) fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b; (3) fourth-degree making false statements in procuring a credit card, N.J.S.A. 2C:21-6b; (4) third-degree unlawful use of a credit card, N.J.S.A. 2C:21-6d(2); (5) third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; and (6) third-degree theft by deception, N.J.S.A. 2C:20-4. At the end of the State's case, the court granted defendant's motion for acquittal as to counts one and two. The jury convicted defendant of the remaining counts. He was sentenced to an aggregate term of three years probation, conditioned upon serving 180 days in the county jail. Defendant raises the following argument on appeal:
THE ADMISSION OF IRRELEVANT HIGHLY PREJUDICIAL EVIDENCE ABOUT DEFENDANT'S RELATIONSHIP WITH [J.U.] COMBINED WITH THE PROSECUTOR'S COMMENT IN HIS OPENING STATEMENT THAT DEFENDANT WAS "SOMEWHAT SLICK AND SLIPPERY" DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL (Not raised below).
We reject this argument and affirm.
In June 2005, defendant, who had been living in Georgia, met for the first time in person J.U., who lived in Hamilton Township, with a post office address of 1717 Liberty Street in Trenton. Defendant and J.U. had previously struck up a relationship over the internet. The relationship was romantic and defendant moved into J.U.'s home upon his arrival in New Jersey. He brought with him his fifteen-month-old son. J.U.'s three children also lived in the household. At the time of trial, three years later, J.U.'s children were fifteen, fourteen and eleven years old.
Defendant told J.U. he had two children and was divorced. He said he was relocating to New Jersey for employment purposes. In the several days prior to August 22, 2005, J.U. learned that defendant was still legally married, that his wife had their second child in July 2005, that his wife was not in Georgia, but living in a shelter in New Jersey, and defendant had been visiting his wife and newborn child on weekends. These revelations led to discord in the relationship. The prosecutor elicited this information from J.U. without objection.
Another incident occurred during these days that further contributed to J.U.'s ill feeling toward defendant. Two or three days prior to August 22, defendant asked J.U. to pick up a Western Union wire transfer of money. When she asked why, defendant said he could not find his identification. She refused "because if he was having a Western Union sent to him, why would I have to go pick it up." On the morning of August 22, 2005, Western Union received a request to change the payee from J.U. to defendant. The amount of the Western Union transaction was $1700. That sum was secured by a Citibank credit card that we will soon discuss. The money was picked up on September 10, 2005 at a Superfresh store in Hamilton.
On the morning of August 22, 2005, after defendant left for work, these events "just festered in [J.U.'s] mind" and she called defendant at work "telling him to come and get his belongings and get out of [her] house." J.U. was concerned that she might become confrontational toward defendant when he came home. She was a corrections officer and did not want any incident to occur that might jeopardize her employment. She therefore called the police and requested that they come to her home to monitor the events.
With defendant present, the police observed a vehicle represented to be defendant's, which bore a temporary license plate, apparently from Georgia. The police believed the plate had been altered. They made some inquires and received information that the vehicle had been stolen. They placed defendant under arrest for receiving stolen property with respect to the vehicle.
J.U. then led the police to some bins in which she had placed defendant's belongings. Included were various documents, including telephone bills and credit card receipts. Included were a Citibank credit card in the name of "Paul Dios" and a telephone bill bearing a slightly different name, "Paul Dinos," with an address of 1717 Liberty Street in Trenton. Further investigation revealed that a Georgia resident named Paul Dinos, who had never been in New Jersey and had never authorized anyone to use his identifying information, was the victim of identity theft. Various purchases had been made in New Jersey using a credit card that had been obtained by "Paul Dios," using the social security number and birth date of "Paul Dinos," and listing an address of 1717 Liberty Street in Trenton. As a result, the additional charges, as later embodied in counts three through six of the indictment, were filed against defendant.
At trial, the State presented an extensive documentary case, but did not present witness to any transactions in which the falsified credit card was used. Therefore, the State's case was purely circumstantial, leaving the jury to consider whether to infer from all of the facts presented whether defendant was the person who applied for and obtained the credit card and used it in the transactions that were described at trial.
Defendant did not testify. He had not made any incriminating statements to the police. His defense strategy was to acknowledge that someone committed identity theft against Paul Dinos, but to argue that the State's proofs were insufficient to prove beyond a reasonable doubt that it was defendant. Defense counsel pointed out that defendant had not confessed, the State failed to produce any eye witnesses to transactions, and that anyone in J.U.'s household could have been the culprit. This included, of course, J.U. and her two teenage children. In cross-examining J.U., defense counsel asked whether she obtained the Citibank credit card and whether she made any of the credit card charges described in the State's case. Defense counsel then elicited from J.U. that at the time of these events, she had recently filed for bankruptcy and could not have any credit cards in her own name.
In his summation, defense counsel's argument about the deficiency in the State's proofs included the following:
What the State proved was that somebody created a cell phone account and a credit card using Paul Dinos' information. I think we can agree on that. Beyond that, the State has not proved anything.
There is a circumstance. A bill or correspondence for each is found at 1717 Liberty. That's it. Harold Powell lived there certainly. [J.U.] lived there certainly. I don't know about your 15-year-olds. My 15-year-old can work a computer. I am not alleging that the 15-year-old did this or the 14-year-old did this. I'm saying that there's four people in the house living [sic] that could have done this, and the State has done nothing to narrow down which one it is. The State says oh, yes, we did. [J.U.] testified that [defendant] asked her to go pick up money. Okay. She said no. Okay. The payee was changed to [defendant]. Okay. It wasn't picked up for 3 more weeks. Okay. We don't have a witness from the Superfresh to say that the guy that picked up the money [matched defendant's description].
Defendant argues that it was plain error to allow [J.U.] to testify about defendant's deceitful conduct toward her regarding his marital status, when his second child was born, the fact that his wife and newborn child were living in New Jersey, and that he was visiting them on weekends. Defendant argues that this was evidence of other bad acts, admitted in evidence in violation of N.J.R.E. 404(b). Defendant contends that the State introduced this evidence to demonstrate his propensity to commit offenses involving dishonesty, by showing that he "was a liar and a cheat in his dealings with [J.U.], [from which] the jury could infer that he fraudulently obtained a credit card to commit theft." Defendant relies on various authorities, including State v. Reddish, 181 N.J. 553, 608 (2004) (forbidding a prosecutor from arguing that a defendant has a propensity to commit a crime for which he is on trial).
We first note that because defendant failed to object to the testimony, our review is guided by the plain error standard, and we will not reverse unless any error had the clear capacity to cause an unjust result. R. 2:10-2. Not any possibility is sufficient, but the error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
We find defendant's argument unpersuasive. We agree with the State that the disputed evidence was relevant because it was part of the overall mosaic of events which provided the jury with context and enabled a fair consideration of the charges against defendant. The evidence explained the relationship between the parties, how and when it began, and what led up to the events of August 22, 2005 when defendant was arrested and the police seized the documents that implicated him. The evidence enabled the jury to understand how and why the police conducted the identity theft investigation that followed.
The evidence was crucial to the State to bolster J.U.'s credibility, because part of the defense strategy was to deflect culpability toward her. Indeed, it may well have been part of the defense strategy to allow the jury to hear about the animosity between defendant and J.U. as tending to suggest that she had a reason to cast blame his way.
We are satisfied from our review of the entire trial record that the disputed evidence was relevant and properly admitted. Had defense counsel objected, the prosecutor would have had an opportunity to respond, and if the judge found defendant's arguments persuasive, some of the information now complained of could have been sanitized. The lack of an objection is an indication that, in the context and flow of the trial, defense counsel did not consider the testimony, now claimed to be error, particularly prejudicial. Macon, supra, 57 N.J. at 333. Further, the description of defendant's conduct, while not exemplary, was not particularly inflammatory. It can be said that such misrepresentations in the course of a romantic relationship are not so uncommon that the jury would be likely to attribute any particular significance to them in evaluating the criminal charges before them.
Defendant's remaining argument is that he was denied a fair trial because of the following comment in the prosecutor's opening statement:
This matter is one in which I think the evidence will reveal the defendant is somewhat slick and slippery, so as you hear the testimony you'll begin to see a little kind of maneuvering that resulted in the charges that are before you at this time.
The prosecutor then went on to describe the charges. It therefore seems clear that the "slick and slippery" reference pertained to the "maneuvering that resulted in the charges," not defendant's conduct toward [J.U.]. Nevertheless, even if the jury could reach the contrary interpretation, what defense counsel did in the face of the comment is important to our consideration of whether the comment constituted plain error requiring reversal.
Defense counsel did not object. Instead, after some introductory comments to the jury, he began his opening as follows:
I've got to start right from the beginning and tell you that [the prosecutor], a very accomplished prosecutor, made a calculated representation. He said that you will find that the defendant is both slick and slippery, probably an objectionable phrase. I didn't bother [to object] because what you're going to find is slick and slippery about this case is the facts that the State hopes to present.
In his summation, defense counsel returned to this theme:
This trial that you've witnessed is kind of a -- in one sense it's a plain vanilla theft case. That's what the State has presented. They're saying somebody stole something. That's the bottom line.
And for a plain vanilla theft case, this is about the most tootie-fruity case I ever saw. You got all kinds of stuff going on.
And as [the prosecutor] said in the beginning, as I called him on it in my opening, the only slick and slippery part of this is the picture that the State is trying to prove because they're trying to say that because two documents came to the house that therefore this man -- one of two adults that lives in the house, one of four people of an age to work a computer, and one of who knows how many other people in the area who could have set this up -- committed these crimes.
It is obvious that defense counsel made a strategic decision to use the prosecutor's "slick and slippery" expression to his advantage. He acknowledged in his opening that he believed the expression was objectionable. Yet, he did not object, which would have provided the judge an opportunity to strike the comment and provide the jury with a curative instruction. We further note that the prosecutor's comment was isolated and fleeting. As we previously stated, a close look at the prosecutor's comment reveals that he was referring to defendant's conduct with respect to the charges, not with respect to J.U. The prosecutor's use of the expression does not raise in our minds a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached. Therefore, if there was error, it was not sufficient to constitute plain error that would require reversal.
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