June 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALAN C. FROST, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-01613.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 26, 2010
Before Judges Graves, Sabatino, and J. N. Harris.
Defendant Alan C. Frost--nicknamed "Freeze"--was found guilty by a jury of all charges contained in a Monmouth County indictment that had been lodged against him: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery with a deadly weapon, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); and first-degree murder, N.J.S.A. 2C:11-3(a)(2) (count four). He was sentenced to an aggregate term of imprisonment of fifty-five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1
Defendant appeals, and raises several putative errors including prejudicial evidentiary rulings, prosecutorial misconduct, inadequate supervision over jurors during the trial, denial of the right to a speedy trial, and impropriety of the sentence. After a thorough review, none of defendant's arguments persuades us that he was deprived of a fair trial, denied due process of law, suffered an improper sentence, or is otherwise entitled to relief. We affirm.
The following facts are gleaned from the trial record as the State's version, which evidently convinced the jury of defendant's guilt. In 2005, co-defendant Sharif Bass was a seller of controlled dangerous substances in Asbury Park. He peddled his illicit wares from the front porch of a partially vacant four-unit apartment building at 320 Asbury Avenue, where Bass once resided.*fn2 Bass operated out of a vacant office on the first floor, and rented the two upstairs apartments to prostitutes and drug users. The building had one legitimate tenant, Carol Schindewolf, who lived with her husband and daughter in a first-floor apartment across from the office.
Co-defendant Benny Matthews served as a bodyguard for Bass, who, in exchange, was given permission to sleep nights in the office. Co-defendant Tasha Canada was Bass's girlfriend. Defendant is Bass's uncle.
On September 22, 2005, Bass called Canada and asked her to come to 320 Asbury Avenue to plan a robbery. Later that evening, Bass, Canada, and Matthews were together on the porch when Schindewolf overheard them discussing plans for an upcoming robbery. Schindewolf was aware--from speaking with Bass and Canada--that a few days earlier they had already committed a similar crime.
Around that time defendant, who had been playing with Schindewolf's daughter on the grass, went onto the porch with the co-defendants. Bass told Matthews he needed money, explaining "[h]e owed money to somebody from buying drugs that he didn't pay... back." According to Matthews, defendant--who was working odd jobs at the time--said, "I need money, too."
The plan that was hatched involved luring a patron from a local bar into the company of defendant and the other co-defendants. Matthews described it as the following:
A: So we all agreed, me, Freeze, Tasha [Canada], we all agreed to rob somebody.
Q: When you say 'we all agreed,' how did you know that everyone else agreed?
A: Because we all agreed. Tasha [Canada], Freeze, like, Y'all down? He asked, Y'all down? He was like, Yeah, we're down. We're down. Everyone said they was down.
Q: What was the plan?
A: The plan was just to grab somebody, take his money and that was it.
Q: And how would you find somebody?
A: Tasha [Canada] was supposed to go to [Golddiggers Bar and Grill], bring somebody back. Me and Freeze would rob him and take the money, and then come back to the house.
After initiating the plan, Canada did not find anyone at the bar that she could lure back to the apartment building. Upon leaving Golddiggers and walking along Bergh Avenue, however, she heard footsteps behind her and someone called out, "[c]an you help me?" It was Phonarith Chhieng, whom Canada believed was stealthily asking her for illicit drugs.
She agreed to help, and led him to 316 Asbury Avenue where Matthews "grabbed him in a choke hold," lifted him off the ground, and dragged him to the side of the house. Canada then fled to the 320 Asbury Avenue apartment building.
Matthews testified about what happened next:
I got to the side of the house. Freeze was there. He punched [Chhieng] in his face [a] couple of times. Punched him in the chest. I asked [Chhieng] where the money was at. He [was] mumbling, 'I ain't got no money,' like that. Then Freeze hit him in the head with the brick. He fell out of my hands, fell onto the ground. He is screaming, "I ain't got no money.' [Defendant] kicked [Chhieng] on the side. You know.
Freeze continued to punch him [a] couple [of] more times. Kicked him a couple [of] times. I kicked him a couple [of] times. Then he put -- at that time -- yeah, he kicked him. Then Sharif [Bass] came back. He started kicking [Chhieng], like, 'Where's the money at? Where's the money at?'
And the guy was like, 'No, I'm a good guy. I'm a good guy. Don't hurt me. I don't have any money. I don't have any money.'
Sharif [Bass] took one of [Chhieng's] shoes off, checked his shoe. Then Freeze put a rope around his neck and then that's when we were starting to leave.
According to Matthews, the entire incident took about thirty minutes, during which time Chhieng never attempted to fight back.
Bass and Matthews returned to 320 Asbury Avenue and defendant arrived shortly thereafter; all of the men were covered in blood. Matthews noticed that defendant was wearing a ring with a moon and star pattern. Bass ordered the men to change their clothes and wash their hands. Bass put the clothes in a black plastic bag, and gave them other clothes that he kept in the office. Soon afterwards, everyone left the premises and scattered in different directions.
On September 23, 2005, the Asbury Park Police Department received an anonymous telephone call about a dead body in the vicinity of 320 Asbury Avenue. A thirty-minute search conducted by the police was unsuccessful. A second telephone call resulted in a further search that ended with the police finding the victim's body behind a building at 316 Asbury Avenue. Police Officer Joseph Spallina, the initial responding officer, testified that the scene appeared as follows:
There was a lot of debris around. It was a body, obviously deceased. The pockets were turned out. The green shirt on, dark-colored pants. Appeared to be a cord wrapped around his neck. One shoe was off, the left one as well as the sock which was about five or six feet away from the body on the left side.
And there was numerous blood spatter patterns like that on the wall of the house.
Monmouth County medical examiner and forensic pathologist Dr. Frederick DiCarlo subsequently performed an autopsy on the victim, which revealed that Chhieng had died from blunt force trauma to his head, left chest, back, and abdomen, and also from strangulation. DiCarlo found multiple impact sites on the victim's face, suggesting at least a dozen strikes to the head were made, determining that the blunt trauma resulted in serious injury to the brain. Chhieng also had broken ribs and hemorrhages on his back and left kidney.
Schindewolf soon learned that a man had died during the nearby robbery. On September 25, 2005, police investigators went to speak with her. She did not want to talk to them on the porch or her foyer, so instead, she asked them to take her to police headquarters. She was upset during the ensuing interview, and too scared to give a written statement. Eventually, however, Schindewolf provided the names of "B" (later identified as Matthews), "Uncle Alan" (later identified as defendant), and Bass as persons of interest.
On September 28, 2005, the police obtained a warrant to search the 320 Asbury Avenue building, except for Schindewolf's individual apartment. They recovered two handguns and a substance believed to be crack cocaine behind ceiling tiles in the building's office. During the search, Matthews coincidentally arrived by bicycle at the apartment house. Matthews was asked to accompany the investigating officers to a satellite office of the Monmouth County Prosecutor, where Matthews was interviewed and then arrested on charges of conspiracy to commit robbery, robbery, and felony murder. Matthews admitted that he grabbed the victim, but said he left when defendant struck Chhieng with the brick. He did not implicate Bass or Canada at that time.
The same day, Canada was located and taken to the Neptune Township Police Department to be interviewed. There, she informed the investigators that Bass and Matthews had been involved in other robberies, but said she did not know anything about the murder under investigation.
Also on September 28, 2005, Bass went on his own to the prosecutor's satellite office in Monmouth County where he gave a statement to detectives. Although he expressed worry about implicating his uncle, and said that Matthews had grabbed Chhieng and dragged the victim into an alleyway, he claimed that Matthews and defendant were the ones to then beat the victim.
Later that day, defendant was spotted by detectives in front of the Metropolitan Motel across from 316 Asbury Avenue. He was taken into custody and arrested. At the time, a "silver- colored moon and star ring" was recovered from defendant. According to a prosecutor's detective, the ring's design matched or was similar to the pattern injuries that had ultimately developed on Chhieng's face.
Several months later, on February 14, 2006, Canada spoke again with investigators. It was then that she mentioned defendant's name for the first time, and drew a diagram indicating that he was in the area when the assault on Chhieng began.
On April 20, 2007, Matthews gave another statement to the police, which he later testified was more truthful than the first one he had provided. At the same time, he entered into a plea agreement in exchange for his trial testimony, if such testimony was necessary. As part of that plea agreement, the State promised to recommend a maximum sentence for several admitted crimes--including aggravated manslaughter instead of murder--of twenty-three years, subject to the NERA.
On June 21, 2007, Canada provided another statement to the police and agreed to testify against all other co-defendants in exchange for a maximum sentence of fifteen years, subject to the NERA. On September 6, 2007, she pleaded guilty to conspiracy and the armed robbery involving Chhieng, as well as to an earlier unrelated crime.
At trial, Matthews admitted his role in the prior unrelated robberies, but claimed defendant was not a participant in those events. Unlike the earlier crimes, Matthews said defendant just happened to be around when he, Bass, and Canada planned the September 22, 2005 robbery. He explained that defendant wanted "to get in" on the robbery, the defendant stating "[y]o, I got to make this money."
Canada admitted at trial that she had lied in some of her prior statements to the police. Contrary to her February 2006 statement, however, she testified that she first saw defendant on the night of Chhieng's murder at Golddiggers but did not see him again until he came running back to the Asbury Avenue apartment building with Bass and Matthews.
The defense called Elizabeth Gaither, a social worker at New Jersey State Prison, who testified that she notarized a document written by Bass on June 9, 2008. The trial judge admitted Bass's written statement into evidence, and it was thereafter read to the jury. The relevant parts stated:
Number one. I am not covering for Alan Frost whatsoever.
Two: Alan Frost should not be found guilty in the Phonarith Chhieng felony murder case. Alan Frost did not put his hands on Mr. Phonarith Chhieng. Alan Frost was not there when Mr. Chhieng was robbed/assaulted. I was the one who hit Mr. Chhieng and then left to check his car. Alan Frost needs to be exonerated on these pending charges.
I, S. Bass..., will testify in stating he had nothing to do with this crime. I understand to my best understanding of the law if I am found to be covering up I could be punished by law. I ask that an immediate court date be set. And the moon/star ring, I gave it to Mr. Frost about two days after the crime happened.
Defendant also called Varnia Johnson, who testified about a statement she gave to investigators on August 24, 2006, concerning her conversation with Canada while they both were incarcerated. Johnson said Canada admitted her involvement in "the killing of a Chinese guy," claiming that she lured the victim into an alleyway with the promise of a sexual favor and that "Sha" and "Benny" beat the victim about the face with their fists and that they also wrapped a cord around his neck. Canada said she walked away and called 9-1-1. She never mentioned anyone else involved in the crime.
Defendant then testified on his own behalf. He denied participating in the planning of the crime, or in the beating and killing of Chhieng. He knew that Bass sold illicit drugs on the porch of 320 Asbury Avenue, and recalled visiting him on September 22, 2005. He even recalled having a drink, and playing catch that day with Schindewolf's daughter on the grass. He denied engaging in any conversations with Bass or his nephew's "little friends" about criminal activity. After Schindewolf and her daughter left, defendant said he went home to the Flamingo Motel three blocks away and later went to Golddiggers. He returned home after about an hour, and did not go out again for the rest of that night. Defendant admitted that he owned a ring with a crescent moon and stars of the Islamic flag, but claimed Bass had somehow taken it without his knowledge and returned it the weekend after the murder.
The State presented rebuttal testimony to negate the written statements by Bass in his June 2008 exculpatory affidavit. Before doing so, the court provided a limiting instruction to the jury that it should consider this testimony only for the purposes of determining the credibility and reliability of the exculpatory affidavit, and not employ it as substantive evidence of defendant's guilt. First, Schindewolf testified about statements made to her by Bass the morning following the murder. Second, two police investigators testified concerning Bass's statements, and his attempts to exculpate defendant. The State also introduced videotapes of Bass's interviews on September 28, 2005, and April 6, 2006.
Defendant has raised the following issues on appeal for our consideration:
POINT 1: DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE IMPROPER ADMISSION OF HEARSAY STATEMENTS UNDER THE CO-CONSPIRATOR EXCEPTION AND BY OTHER IMPROPER HEARSAY EVIDENCE AT TRIAL (PARTIALLY RAISED BELOW). POINT 2: THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL BY PERMITTING TESTIMONY REGARDING OTHER CRIMES ALLEGEDLY COMMITTED BY THE INDIVIDUALS IN QUESTION (PLAIN ERROR).
POINT 3: EVEN IF THE OTHER-CRIMES EVIDENCE WAS PROPERLY ADMITTED, THE JURY INSTRUCTIONS LIMITING THE ADMISSIBILITY OF THIS EVIDENCE WERE INSUFFICIENT (PLAIN ERROR).
POINT 4: COMMENTS BY THE PROSECUTOR WERE PREJUDICIAL AND CUMULATIVELY DENIED DEFENDANT A FAIR TRIAL.
POINT 5: THE MATTER SHOULD BE REMANDED FOR FURTHER REVIEW OF WHETHER A JUROR WAS SLEEPING DURING TRIAL.
POINT 6: THE MATTER SHOULD BE REMANDED FOR CONSIDERATION OF WHETHER DEFENDANT'S SPEEDY TRIAL RIGHTS WERE VIOLATED BY THE DELAY BETWEEN ARREST AND PROSECUTION AT TRIAL. POINT 7: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
From our independent analysis of the record, we conclude that these contentions are without merit and do not warrant either a new trial or re-sentencing.
As a threshold matter, we note that our review of the Law Division's rulings on the use and admissibility of evidence is limited, with deference given to the decisions rendered during the crucible of a trial. State v. Fortin, 189 N.J. 579, 597 (2007). Evidentiary rulings "ordinarily should not be disturbed unless [they are] 'wide of the mark.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Even if hearsay testimony is erroneously admitted, this court should not reverse the result if the error was "'harmless... in view of the other similar proofs before the jury.'" State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (quoting State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984), aff'd, 103 N.J. 169 (1986)), certif. denied, 170 N.J. 209 (2001), overruled on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005). Cf. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004) (recognizing a constitutional dimension--pursuant to confrontation principles--related to the admission and use of testimonial hearsay).
Defendant contends the trial court improperly admitted statements during rebuttal testimony that did not fall within the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5), and violated his constitutional right of confrontation. At trial, defense counsel successfully moved into evidence and read to the jury the critical content of Bass's affidavit. The court had previously advised the attorneys that this document would "open the door up for the prosecutor to bring in certain statements... of Sharif Bass where he said that your client did in fact do it." Defense counsel represented that his client "understands that" consequence.
The prosecutor subsequently offered rebuttal evidence to challenge the affidavit's credibility, including the testimony of Schindewolf and two investigators, and videotaped interviews of Bass in September 2005 and April 2006. Before permitting the prosecutor to elicit rebuttal testimony, the trial court first provided the jury with a limiting instruction, which stated in relevant part:
It is up to you to determine the credibility and reliability of D-39, the oral statements of Bass to Schindewolf, and S-51 and S-52 cannot be used as substantive evidence against the defendant. They can only be used on the issue of whether D-39 is credible and reliable.
In other words, this rebuttal testimony that you are going to hear and the videotape can only be used to attack the credibility of the affidavit, D-39, not as substantive evidence of the defendant's guilt. You may find that D-39 is credible in whole or in part, and then you can consider what you find credible with all the other evidence in the case. You might find that D-39 is not credible in whole or in part and then you would reject the affidavit either in whole or in part.
Defense counsel did not object to the proposed testimony or to the limiting instruction.
Schindewolf thereafter testified about statements that Bass made to her on the morning after Chhieng's death. She described Bass as "very jittery, very nervous, quiet. Not usual for him at all," and said "he was sitting there holding his head which kind of threw me off." When she asked what was wrong, Bass told her that "he thinks the man is dead." He explained that they had robbed a man the previous night, that Matthews had beat and choked him, and that defendant had beat the victim, hit him with a brick "a couple of times," and "choked the man with the rope." Bass also told her that he had to get rid of defendant's clothes because they were "filled with blood."
The next witness, a detective, explained that he and another investigator interviewed Bass in April 2006 after the prosecutor's office received numerous letters expressing Bass's interest in discussing the case. He told the detectives a different version of events, claiming he heard and observed Chhieng's beating but could not identify the assailant. When confronted with his previous statement that he actually saw defendant "jackhammering the victim," Bass denied it and instead explained that he had just heard about it from others. The witness also testified that Bass never indicated that he had borrowed defendant's ring.
Another rebuttal witness testified that Bass admitted to some knowledge of the crime but appeared more concerned about implicating his uncle. Bass said Matthews had grabbed Chhieng from behind and dragged him into the alley, where defendant and Matthews assaulted him. The prosecutor then played portions of the videotaped interviews to the jury.
During the final jury charge, the court reminded the jurors about the proper use of the testimony, directing them to follow its limiting instructions, and not to consider the evidence for any other purpose. It also instructed the jury again on the limited use of the rebuttal testimony to show whether Bass's attempt to exculpate defendant was credible or not. The court stated:
It is up to you to determine the credibility and reliability of D-39. The oral statements of Bass to Schindewolf, to the officers, and S-51 and S-52 [the videotapes], cannot be used as substantive evidence against the defendant. They can only be used on the issue of whether D-39 is credible and reliable. In other words, they can only be used to attack the credibility of the affidavit, D-39, not as substantive evidence of defendant's guilt.
Rebuttal testimony generally is limited to contradicting specific subjects introduced in the testimony of defense witnesses. State v. Carroll, 256 N.J. Super. 575, 604 (App. Div.), certif. denied, 130 N.J. 18 (1992); State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970). If evidence is admissible during the case in chief, a trial court has considerable discretion to admit rebuttal testimony and its decision will not be disturbed in the absence of gross abuse. State v. Sturdivant, 31 N.J. 165, 178 (1959), cert. denied, 362 U.S. 956, 80 S.Ct. 873, 4 L.Ed. 2d 873 (1960); State v. Cooper, 113 N.J. Super. 34, 39 (App. Div. 1971).
"A statement, made other than by a witness while testifying, offered to prove the truth of the content of the statement is hearsay evidence and is inadmissible unless it falls within one of the hearsay exceptions." State v. Phelps, 96 N.J. 500, 508 (1984). The co-conspirator exception provides that statements "made at the time the party and the declarant were participating in a plan to commit a crime" and "made in furtherance of that plan" are admissible against a co-conspirator. N.J.R.E. 803(b)(5); see State v. Savage, 172 N.J. 374, 402 (2002) (quoting Phelps, supra, 96 N.J. at 508). The rationale is the belief that "[s]ince conspirators are substantively liable for the acts of their co-conspirators, they are equally responsible for statements by their confederates to further the unlawful plan." State v. Harris, 298 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997).
In order to be admissible against a defendant, a coconspirator's statement must meet three conditions: (1) the statement must have been made in furtherance of the conspiracy, (2) the statement must have been made during the course of the conspiracy, and (3) there must be evidence, independent of the hearsay, of the existence of the conspiracy and the defendant's relationship to it. Phelps, supra, 96 N.J. at 509-10. Although the co-conspirator exception technically denies a defendant the opportunity to cross-examine the witness, the circumstances of such statements "afford a sufficient guarantee of testimonial trustworthiness." Harris, supra, 298 N.J. Super. at 487. Under the facts of this case, all three elements were present; the statements satisfied the conditions in order to allow them to be used for the limited purposes as explained to the jury by the trial judge.
Moreover, the State did not elicit any hearsay statements from any co-defendants until defendant had introduced Bass's exculpatory affidavit, thereby putting Bass's credibility at issue. Although the court alerted defendant of this strategy's potential consequences, he and his counsel knowingly elected to proceed in that fashion, which triggered the relevance of the proffered rebuttal evidence.
"The 'opening the door doctrine' is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. James, 144 N.J. 538, 554 (1996). This doctrine "allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." Ibid. The opening the door doctrine, however, "can be used only 'to prevent prejudice,' and may not 'be subverted into a rule for [the] injection of prejudice.'" State v. Vandeweaghe, 177 N.J. 229, 238 (2003) (quoting James, supra, 144 N.J. at 556).
Even if the rebuttal statements were arguably admissible under that doctrine, defendant claims that their admission nevertheless deprived him of his constitutional right of confrontation. He specifically objects to Bass's statements in which he allegedly denied ever possessing defendant's ring. Defendant claims that these statements were testimonial in nature, and that they were inadmissible because he did not have the opportunity to cross-examine Bass.
The Sixth Amendment to the United States Constitution, and article I, paragraph 10 of our New Jersey Constitution, guarantee a criminal defendant the right to confront "the witnesses against him." State v. Branch, 182 N.J. 338, 348 (2005). "The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a 'fair opportunity to defend against the State's accusations.'" Ibid. (internal quotations and citations omitted).
The Confrontation Clause does not, however, condemn all hearsay. Id. at 349. In Crawford, supra, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203, the Supreme Court held that where hearsay evidence is "testimonial," it may not be admitted substantively against a criminal defendant unless the declarant is unavailable and defendant had a prior opportunity to cross-examine. Crawford is inapposite and distinguishable from this case because the State did not offer Bass's statements as substantive evidence against defendant. Crawford, supra, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed. 2d at 197.
By purposefully electing at trial to introduce Bass's affidavit in lieu of providing the declarant for examination himself, defendant cannot now successfully argue on appeal that his constitutional rights were violated. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 504-05 (1996) (applying invited error doctrine to bar disappointed litigant from arguing on appeal a different strategy than one advocated below); see also Division of Youth & Family Services v. M.C. III, 201 N.J. 328 (2010). Thus, defendant waived his Sixth Amendment right of confrontation during trial as to this proof. State v. Capone, 215 N.J. Super. 497, 502 n.1 (App. Div. 1987); State v. Sheppard, 197 N.J. Super. 411, 436 (Law Div. 1984) (holding that one reason to reject the defendant's claim that videotaped testimony of child victim would be inadmissible was that the defendant waived his right of confrontation by reason of his threat to kill her).
Defendant also contends that the court improperly admitted evidence of other crimes committed by his co-defendants. Specifically, he argues that testimony about an earlier planned robbery and a prior mugging was unduly prejudicial, that the court failed to cure the prejudice by issuing a limiting instruction, and that the admission of this evidence constituted reversible error. We are unpersuaded by defendant's arguments.
The State introduced the evidence of other criminal acts only when questioning Matthews and Canada regarding their plea agreements. Both defendants acknowledged at trial that they pleaded guilty to various counts in the Chhieng case, as well as to separate counts in another unrelated case.
Matthews described the earlier robbery as the "same [modus operandi], but [defendant] Freeze was not there." Canada went to Golddiggers and lured a "[b]lack male with dreads," to the same location on Asbury Avenue where Matthews and Bass beat and robbed him of twenty-four dollars and a cellular telephone. Canada confirmed on direct examination that Bass and Matthews were the only two men who participated in the crime with her, and that she did not see defendant that day.
Defendant did not object at trial to the admission of the co-defendants' testimony regarding the other crimes. In fact, during Canada's cross-examination, defense counsel elicited additional testimony about the robbery by asking such questions as, "who was it that grabbed [the victim]," "who beat him up," "what did you see," and "[i]n fact, [is not it true] that's exactly the same scenario of him being yanked and yoked by Benny?"
A trial court has discretion to admit other crimes evidence. State v. Marrero, 148 N.J. 469, 483-84 (1997); State v. Angoy, 329 N.J. Super. 79, 88 (App. Div.), certif. denied, 165 N.J. 138 (2000). An appellate court should not disturb the trial court's ruling unless it "'was so wide of the mark that a manifest denial of justice resulted.'" Marrero, supra, 148 N.J. at 484 (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
Evidence of other crimes, wrongs, or acts, however, is not admissible to show that a criminal defendant is predisposed to commit a crime. N.J.R.E. 404(b); State v. P.S., ___ N.J. ___, ___ (2010) (slip op. at 25). Such evidence may be admitted for limited purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b).
To determine admissibility, the court must determine whether the other crimes evidence is (1) relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value to not be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992). When "deciding whether to exclude evidence based on its potential for prejudice, 'a court must consider the availability of other evidence that can be used to prove the same point.'" State v. Long, 173 N.J. 138, 164 (2002). An appellate court is required to extend "great deference" to a trial court's decision admitting evidence under N.J.R.E. 404(b). Cofield, supra, 127 N.J. at 340. We cannot find an abuse of that discretion in this case.
Although the State introduced the other crimes evidence, it was defense counsel who pursued details of the robbery during Canada's cross-examination. Moreover, Matthews's and Canada's other crime evidence was presented in connection with their culpable conduct, not for the purpose of inculpating defendant for those prior crimes. Cf. Cofield, supra, 127 N.J. at 342 (finding the defendants used the other crimes evidence to "point the finger of guilt" at the defendant). In fact, both co-defendants testified that defendant did not participate in the earlier events, and gave no indication that he was involved in any way with the planning or execution of the prior criminal adventures.
Defendant argues that the admission of this evidence was unfairly prejudicial because of its potential to lead the jury to convict him of the crime at issue based on the similar prior robberies committed by his alleged co-conspirators. If anything, the introduction of the other crimes evidence called into question the credibility and reliability of co-defendants, which defense counsel sought to use Canada's testimony to inculpate Matthews, thereby bolstering the defense by pointing the finger at Matthews instead of defendant.
The absence of a jury instruction to limit the use of this evidence was likewise inconsequential. Because the State did not attempt to use the other crimes evidence to show defendant's guilt for those crimes, there was little need for the trial court to explicitly instruct the jury of its impact. See State v. G.S., 145 N.J. 460, 473-74 (1996) (holding that an examination of the entire record, and defense counsel's use of the other crimes evidence, indicated the jury was not misled into using the evidence to demonstrate criminal propensity); cf. Cofield, supra, 127 N.J. at 342 (holding the court erred by failing to issue an instruction to cure the prejudicial impact caused by the co-defendants use of other crimes evidence to call the defendant the "dope pusher," and to portray themselves as innocent bystanders).
Defendant contends that during the trial, the prosecutor acted improperly in certain respects, which warrants a new trial. He claims that the State elicited impermissible hearsay evidence in violation of State v. Bankston, 63 N.J. 263, 268 (1973), and additionally made improper references to defendant's employment status, his prior drug conviction, and indicated that the area of Asbury Park where he lived had "a lot of crime." He argues that the cumulative effect of this testimony, and the court's failure to issue strong curative instructions, deprived him of a fair trial. We again disagree.
Police officers do not violate the hearsay rule when they testify without elaboration to the reasons for approaching a subject or going to the scene of a crime by stating that they did so upon information received. Ibid. Such testimony is admissible to show that the officers were not acting arbitrarily or to explain their subsequent conduct. Ibid. When the officers, however, become more specific by repeating what someone else told them concerning a crime by the accused, their testimony can violate both the hearsay rule and right of confrontation. Id. at 268-69; see also State v. Farthing, 331 N.J. Super. 58, 75 (App. Div.), certif. denied, 165 N.J. 530 (2000). Moreover, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271.
Defendant argues that the prosecutor improperly asked a testifying detective if, based upon his interview with Schindewolf, he obtained the names of three individuals who were working with defendant. When the prosecutor asked for the names, the witness indicated one individual "was a gentleman by the name of Uncle Alan who we ultimately identified as the defendant, Mr. Alan Frost." Defendant also argues that the prosecutor improperly asked the detective: (1) if police learned from the prior robbery victim that "he had been robbed by two men" and "believed he was set up by a female," and (2) if, after the police spoke with Matthews, complaints were signed against someone else, to which the witness replied, "[y]es...
[a]against Mr. Alan Frost."
This testimony did not deprive defendant of his right of confrontation because Schindewolf and Matthews both testified at trial and were subject to cross-examination. See Crawford, supra, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed. 2d at 197. Also, in both cases, the detective did not supply specific details about what these witnesses had told him. He did not repeat what Matthews revealed to the police, or elaborate before the jury about what Schindewolf told him concerning defendant's role in the crime.
Similarly, the testimony regarding the prior robbery was not unduly prejudicial because defendant was not a participant in that crime. Thus, the statement did not communicate to the jury any information about defendant's putative guilt.
Moreover, Rule 2:10-2 provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. Branch, supra, 182 N.J. at 353; State v. Macon, 57 N.J. 325, 336 (1971); State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000).
"For a hearsay error to mandate reversal, '[t]he possibility [of an unjust verdict] must be real, one 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. Hightower, 120 N.J. 378, 410 (1990) (quoting Bankston, supra, 63 N.J. at 273). "In determining whether the admission of disputed evidence was harmless, we focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]'" State v. Kemp, 195 N.J. 136, 149-50 (2008) (quoting Macon, supra, 57 N.J. at 338).
Comparing the probative value of the testimony by the detective to the wealth of other evidence against defendant, see State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds, State v. Dalziel, 182 N.J. 494 (2005), we conclude that the jury would not have reached a different conclusion even if the disputed testimony had been excluded. That testimony was not clearly capable of producing an unjust result, and its admission does not raise a reasonable doubt in our minds about whether it affected the fairness of defendant's trial.
When defendant testified, he contends the prosecutor improperly asked him on cross-examination if he had a job. He argues on appeal that this question was impermissible because its purpose was to show that he had a tendency or motive to commit the crime at issue.
Evidence of a defendant's employment is generally inadmissible to prove that he or she had a motive to commit the crime. State v. Mathis, 47 N.J. 455, 471-72 (1966), rev'd on other grounds, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed. 2d 855 (1971); State v. Terrell, 359 N.J. Super. 241, 245-48 (App. Div.), certif. denied, 177 N.J. 577 (2003); State v. Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978). "The introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form." Terrell, supra, 359 N.J. Super. at 247. This evidence, however, may be admissible if it is relevant to a fact in issue. State v. Jones, 364 N.J. Super. 376, 385-86 (App. Div. 2003) (holding testimony that defendant told the police he was unemployed was relevant because he was wearing the uniform of a security guard at the time of his arrest).
Here, defendant testified on direct examination that he was living on general assistance, and that he was working "on and off, odd jobs" at the time. When defense counsel asked if he was looking for work during the latter part of September 2005, he replied, "Yes, I was." Defendant then explained that he was looking "very hard" for employment, and was supposed to start work at a rubber factory in early October. On cross-examination, the prosecutor asked a single question, "[a]nd at the time you said you did not have a job," and defendant replied, "[n]o, I didn't." The subject was not repeated and the issue was not pressed further by the prosecutor. Most importantly, the question did not receive an objection from defense counsel.
Defendant, therefore, introduced evidence of his employment status in his case in chief merely to show that he was looking for a job. There is nothing in the record to suggest the prosecutor elicited this testimony to prove that defendant had a motive to commit a crime. Thus, in light of all the evidence, the fleeting nature of the question and its response, along with the lack of any objection by defense counsel, the prosecutor's stray reference to defendant's employment did not amount to plain error.
Defendant further contends that the prosecutor improperly asked defendant a too-specific question on cross-examination about a prior conviction: "and on July 23rd of 1999 you were convicted of possession of CDS, a controlled dangerous substance." Defendant replied, "Ma'am. You are not supposed to mention charges, but yes." The prosecutor immediately attempted to apologize for the gaffe, but was interrupted when the trial judge promptly interjected by instructing the jury immediately "to disregard that comment by the prosecutor," warning the prosecutor "don't let it happen again." The prosecutor acknowledged that she "did not mean to do that."
During the final jury charge, the court again instructed the jury that it should not consider any testimony that the court had reason to strike. The judge explained, if I told you not to consider certain testimony that came out, you should not consider that as evidence, and it should not enter into your final deliberations. It must be disregarded by you, anything I have stricken from the record. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations.
The court also charged the jury on the proper limited use of other crimes evidence, stating:
You have heard evidence that [defendant] has previously been convicted of crimes. This evidence may only be used in determining the credibility or believability of the defendant's testimony. You may not conclude that the defendant committed the crime charged in this case or is more likely to have committed the crime charged simply because he committed a crime on another occasion.
A jury has a right to consider whether a person who has previously failed to comply with society's rules as demonstrated through a criminal conviction would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of any crime. You may consider in determining this issue the nature and degree of the prior conviction[s] and when they occurred.
When the State seeks to explore a testifying defendant's prior conviction that is the same or similar to the offense charged, the trial court must ordinarily prevent the jury from hearing specific details of the prior offense in order to avoid the potential for misuse of the evidence and resultant prejudice. State v. Brunson, 132 N.J. 377, 391-92 (1993). The court, therefore, usually must sanitize the evidence of the prior conviction by limiting the scope of the prosecutor's cross-examination to the date, degree, and number of similar prior convictions of the defendant. Id. at 392 (reversing conviction where the State used prior convictions to cast doubt on the defendant's credibility, without first sanitizing them).
In State v. Hamilton, 193 N.J. 255, 267-68 (2008), the Court noted that the point of the Brunson rule was to require trial courts to recognize the risk of undue prejudice from prior conviction evidence, and to take steps to neutralize the highly prejudicial effect by eliminating reference to the specifics of the earlier crime. Thus, the Court held that the mandatory holding in Brunson did not foreclose a trial court from using its discretion to consider sanitization of prior convictions in other circumstances that posed a potential risk of undue prejudice to the defendant. Id. at 268-69 (holding court erred in concluding that it was forbidden to sanitize evidence where connection between the defendant's prior homicide conviction and the suspicious-death-investigation backdrop to his arrest for drug possession could unduly prejudice the jury).
Here, the prosecutor did not introduce evidence of a prior conviction that was the same or similar to the offenses charged. There was also no evidence to suggest any similarity in the facts of his prior conviction relating to the possession of controlled dangerous substances and his present arrest for, among other things, robbery and murder. Moreover, the court instantly instructed the jury to disregard the testimony about the details of the crime, and later gave a jury charge that again instructed the jury not to consider this evidence in its deliberations. We do not believe that what occurred constituted prosecutorial misconduct, and it was nevertheless incapable of producing an unjust result.
Defendant finally argues that the prosecutor made improper negative references about the area of Asbury Park where defendant resided, as one with "a lot of crime." Defendant claims that this was for the purpose of attempting to paint him as an unsavory character participating in criminality, specifically the illicit drug trade. Defendant argues that the cumulative effect of references to crimes in the neighborhood and drug dealing deprived him of a fair trial, and warrants a reversal of his convictions.
In order to decide if a defendant has been denied a fair trial, a court will look at the significance of the trial errors. State v. Blakney, 189 N.J. 88, 96-97 (2006). If the combined effect of individual errors has the clear capacity to cause an unjust result, the defendant's conviction must be reversed. Id. at 97 (holding prosecutorial excesses in summation combined with inadequate jury instructions and less than overwhelming evidence supporting a murder conviction could not be viewed as harmless); State v. Reddish, 181 N.J. 553, 614-15 (2004) (holding court's error in summarizing the evidence and the improper admission of other crimes evidence warranted a new trial).
The New Jersey Supreme Court has recognized that even when "an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt upon a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). A reviewing court must make certain that defendant received a fair trial. Id. at 473-74. Where "the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). However, when incidental legal errors do not unduly prejudice the rights of an accused, "it would be grossly unjust to the State and its people to grant a new trial." Ibid.
Here, there was no evidence--direct or circumstantial-- presented by the State to suggest that defendant was a participant in Bass's drug business or otherwise had a propensity to commit crimes because of where he lived or due to his employment status. Any alleged errors were not of such magnitude, even collectively, as to unduly prejudice this defendant's right to a fair trial.
Defendant next contends the court erred by failing to consider and investigate his claim--first raised at his sentencing hearing--that a juror was sleeping during throughout the trial. He argues that this error requires a remand to allow further consideration of this issue.
When allowed to address the court before the imposition of his sentence, defendant declared his displeasure with the verdict and revealed, almost as an aside, "actually one of the jurors was sleeping during the whole case." The following colloquy then occurred:
[The Court]: That juror was not sleeping.
[The Defendant]: But also
--[The Court]: Hold on, time out. That juror was not sleeping during the course of this case. I had an opportunity to watch that juror throughout the case. It was brought to my attention at one point that his eyes were closed. At times he did close his eyes, but he was paying attention as all the other jurors in this particular case did.
So there was no juror sleeping during the course of the trial. That was his way of paying attention.
A court should, after an appropriate inquiry, take corrective action when counsel brings to its attention the fact that a juror was sleeping. State v. Scherzer, 301 N.J. Super. 363, 491 (App. Div.), certif. denied, 151 N.J. 466 (1997); see also State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986) (holding court should have done "something more" than dismiss, without any explanation, defense counsel's claim that a juror was sleeping); State v. Reevey, 159 N.J. Super. 130, 133- 35 (App. Div.), certif. denied, 79 N.J. 471 (1978) (remanding to conduct a hearing to determine whether juror was sleeping or merely listening to summation and charges with her eyes closed).
The record in this case contains no other reference to the alleged sleeping juror beyond what has already been recited. Neither defendant nor defense counsel asked the court to question the juror at any time during the trial, and no application was made to substitute that juror and replace him with an alternate. Moreover, defense counsel neither joined in defendant's objection, nor did he later file a motion for a new trial based upon the allegation of an inattentive and sleeping juror.
Defendant nevertheless claims that the trial court insufficiently evaluated this issue. The court, however, advised the jury during its pretrial instructions to pay careful attention to all of the testimony. Indeed, when the judge became aware that one juror had his eyes closed, the judge personally observed that juror and found the juror was paying attention and not sleeping.
Additionally, defendant fails to support his claim that the juror slept during the "whole case" with any supporting details. It is unclear if the juror actually slept during portions of the case that were critical to the defense. See State v. Glover, 230 N.J. Super. 333, 343 (App. Div. 1988) (finding harmless error where question of alleged juror's attentiveness came at a point in trial when no critical evidence was being presented), certif. denied, 121 N.J. 621 (1990). Moreover, the timing of defendant's objection, made only after the jury's dismissal, prevented the court from taking corrective action. We perceive no error in the fashion that the trial court thereafter addressed defendant's complaint.
Defendant argues that he was denied his right to a speedy trial. He was first arrested on September 28, 2005, and indicted ten months later on July 31, 2006. Twenty-two months after that, on May 23, 2008, he first moved for a trial date to be scheduled in June 2008, and alternatively sought a dismissal of the indictment on constitutional speedy trial grounds. The motion was denied. On July 8, 2008, defendant filed another motion for dismissal of the indictment for failure to prosecute, which the court also denied. Jury selection ultimately commenced on September 16, 2008, and a verdict was finally reached on October 3, 2008. Thus, between his arrest and the start of the trial, almost three years elapsed, a significant period.
"The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and imposed on the states by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 993, 18 L.Ed. 2d 1, 7-8 (1967)). "'The constitutional right... attaches upon defendant's arrest.'" Ibid. (quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002)). It is the State's duty to promptly bring a case to trial; that responsibility does not fall on the defendant. Ibid. (citing State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)). "As a matter of fundamental fairness," the State must avoid "excessive delay in completing a prosecution[,]" or risk running afoul of the "defendant's constitutional right to speedy trial." State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999).
The determination of "when a delay infringes upon a defendant's due process rights" is guided by the four-part test announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed. 2d 101, 117 (1972), and adopted by the New Jersey Supreme Court in State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed. 2d 180 (1976). Specifically, courts must consider and balance the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid. In applying the four-part test, "[n]o single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Tsetsekas, supra, 411 N.J. Super. at 10 (citing Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed. 2d at 118).
Measured against these factors, we conclude that there was no violation of defendant's constitutional right to a speedy trial. Defendant acknowledges in his appellate brief that the "trial was delayed for valid reasons in part." Defendant conceded that it took "awhile to indict" and that there were issues dealing with the various co-defendants' pleas. The trial judge acknowledged that the March 2008 trial date was adjourned because he was "involved with another case that took several weeks and it was just impossible to fit this particular case in." The court recognized that the matter was "a complicated case," with several motions and a number of co-defendants who had subsequently entered pleas of guilty. The prosecutor apologetically indicated that the State would not be ready for a trial in June 2008 because he was trying another case and needed more time to prepare, but that it was the first time the State was unable to proceed.
This was a serious and complex murder prosecution with multiple co-defendants. Thus, under these circumstances, the delay by itself does not warrant reversal. See Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117 ("the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge"); State v. Douglas, 322 N.J. Super. 156, 171 (App. Div.) (holding three-year delay from arrest to trial in capital case did not give rise to prejudice or denial of right to a speedy trial), certif. denied, 162 N.J. 197 (1999).
Although the trial court did not grant defendant's application for a trial date certain or a dismissal of the indictment in May 2008, it nonetheless was able to commence the trial within three months of defendant's demanded June 2008 date, and some six months after the originally scheduled trial date. Finally, there is no indication that the State intentionally delayed the trial in an effort to hamper the defense. Douglas v. Hendricks, 236 F. Supp. 2d 412, 422 (D.N.J. 2002) ("A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government."), aff'd, 456 F.3d 403 (3d Cir. 2006).
Lastly, defendant contends that his sentence was improper and excessive. He argues that the court failed to sufficiently explain its reasons for finding five aggravating factors.*fn3 We disagree.
"[A]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)). A trial court must also "state on the record" how it arrived at a particular sentence, which necessarily includes a discussion of aggravating and mitigating factors. Ibid. (citing State v. Natale, 184 N.J. 458, 488 (2005)).
We have reviewed the transcript of the sentencing proceeding and find no evidence that the trial court neglected its obligation to explain its choice of the selected aggravating factors. Suffice it to say that the judge described the nature of the crime and its consequent victimization in detail, reviewed and commented upon the extensive criminal history of defendant, and appropriately balanced the multiple aggravating factors against the absence of mitigating factors. We detect no manifest injustice to serve as a basis to warrant interfering with the trial judge's assessment. See State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate judges to refrain from second-guessing the discretion of sentencing judges); see also State v. Roth, 95 N.J. 334, 365 (1984).