On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Lihotz.
Tried by a jury, defendant Nathaniel Smith was convicted of conspiracy to commit armed burglary/robbery, N.J.S.A. 2C:5-2 (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven). He was acquitted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); and second-degree armed burglary, N.J.S.A. 2C:18-2 (count five). Defendant moved to set aside the verdict contending it was invalid because he was acquitted of the predicate robbery and burglary offenses, but the trial judge denied relief, reasoning that the verdict was merely "inconsistent." Granting the State's motion for an extended term, N.J.S.A. 2C:44-3(a), the judge sentenced defendant to thirty years in prison with a thirty-year minimum term on the felony murder count; a concurrent ten-year term on the conspiracy charge; and a concurrent twenty-year term with a ten-year mandatory minimum on his conviction for possession of a weapon for an unlawful purpose, into which count six was merged.
Defendant's conviction arises from the murder of Trevor Lewis on May 22, 2006. According to the State's proofs, earlier that evening, pursuant to a pre-arranged plan, defendant picked up Laquanna Stewart and Kendra Davis at their Jersey City homes and drove to Lewis' apartment, where Lewis buzzed the women inside around 8:30-9:00 p.m., while defendant remained outside in his car. Once inside Lewis' apartment, the three drank alcohol and smoked marijuana for about thirty to forty-five minutes. Stewart also ingested angel dust and ecstasy. Eventually, Lewis and the two women retreated to the bedroom where both women undressed and began to perform sexual acts on Lewis, who had earlier agreed to pay for a threesome tryst. Hours later, Lewis was found dead, lying face down on his bedroom floor having been shot three times, twice in the torso and once in the head.
Although both Stewart and Davis admitted to being inside the apartment when Lewis was shot, each denied shooting him and claimed that defendant, who supposedly snuck into the apartment while Lewis was distracted and engaged in the threesome, shot Lewis in a botched burglary plot. Originally indicted with defendant, Stewart and Davis eventually pled guilty to a lesser offense and testified at defendant's trial.
Stewart, who was eighteen-years old at the time, had known Lewis well, having previously bought marijuana from him and exchanged sex with him for either money or marijuana. In fact, she previously had asked Lewis for $900 to pay her mother's rent but he refused, although he at one time had offered her money in exchange for a threesome. Sometime later, Stewart decided to take Lewis up on his offer and agreed to a threesome as part of a plan to get paid between $200-250 and, unbeknownst to Lewis, to steal a bucket of marijuana from his apartment during the tryst. Stewart then contacted defendant, with whom she had been acquainted, to help execute this plan.*fn1 She met with defendant in Jersey City's Audubon Park to discuss the details of the plan, which called for defendant to provide the second woman for the threesome, sneak into Lewis's apartment during the threesome, grab a bucket of marijuana and leave. The marijuana was to be split evenly among the parties.
According to Stewart, while she and Davis were in the bedroom with Lewis, and defendant remained downstairs, she "chirp[ed]" him on his cell phone as a signal that it was time for him to enter the apartment. Thereafter, Lewis must have heard defendant enter because he jumped out of bed and walked towards the living room. Stewart heard Lewis confront someone before he ran back into the bedroom with defendant in pursuit. Upon entering the bedroom, defendant allegedly shot Lewis three times. Lewis then fell face first onto the floor next to his bed. Stewart was surprised by defendant, who was wearing all black, a ski mask and had a gun, as it was not part of their plan.
According to Stewart, defendant then fled, and the two women, after getting dressed, met up with defendant in his car. After dropping off the women at their respective residences, defendant called Stewart asking her to return to Lewis' apartment with him, but she refused.*fn2
Davis acknowledged knowing defendant for about six months, engaging in "flings" with him and having previously asked him for money. Defendant held off on the request until May 22, when he brought Davis and Stewart to Lewis' apartment and told Davis "to go [to this] guy['s] house . . . [and] . . . have a sexual encounter with the individual for money." According to Davis, during the encounter, defendant stood "in front of [Lewis] pointing a gun," and then shot Lewis three times.*fn3 After fleeing Lewis' apartment and entering defendant's vehicle, Davis observed a "tub of marijuana" in the backseat of the car, but supposedly declined her share.
Both Stewart and Davis claimed to be scared of defendant. Davis said defendant threatened her after the shooting: "[h]e said if you don't get in the car you'll know what's going to happen."
On April 10, 2007, defendant gave a statement to Detective Javier Toro of the Hudson County Prosecutor's Office. He at first denied knowing either Stewart or Davis or having any knowledge of the murder. Eventually, however, defendant admitted that he drove Davis and Stewart to Lewis's apartment, knew only that Stewart went there to get money, left the scene to go to a gas station with another individual and returned after being contacted by Stewart. Upon arrival, defendant saw the women with a bucket of marijuana, which Stewart explained she "got this nigga for this weed." Defendant said he knew Stewart had a gun before she entered the apartment, but he didn't know "what she did with it[,]" and they didn't tell him "they" shot Lewis "till the next day." Defendant was re-interviewed on April 12 and gave a similar account, admitting that he knew the victim had been killed, and that he had driven the women to and from the victim's apartment.
Defendant's cousin, Graceland Powell, testified for the defense. She had been incarcerated with Stewart between November 2007 and April 2008 and admitted to two prior drug convictions. She claimed that Stewart admitted shooting "the guy" because she panicked and became nervous when the victim "heard Nathaniel come in the house," and that it was "a robbery that went bad." Powell also overheard Stewart on the phone say that she was going to "get [defendant] touched" or "hurt" for not "taking the weight for it." Stewart, on the other hand, denied talking to Powell about the incident and claims Powell delivered a threatening message to her from defendant, which led to a physical altercation between the two women.
At the close of evidence and following the court's instructions, the jury returned its verdict, finding defendant guilty of conspiracy to commit burglary and/or robbery, felony murder, unlawful possession of a weapon and possession of a weapon for an unlawful purpose, but not guilty of murder, burglary and robbery. In denying defendant's motion for judgment of acquittal, the judge noted:
The case at bar is distinguished from [State v. Grey, 147 N.J. 4 (1996),] because here the jury's instructions on felony murder were correct, however, the jury chose not to follow the instruction.
Here the jury was instructed that conspiracy could not be a basis for a conviction of felony murder. So unlike G[rey], this seems to be a case in which the jury having properly reached its conclusion on the compound offense through mistake, compromise, or lenity arrived at an inconsistent conclusion on the lesser offense.
One thing is certain. This is not a case in which the inconsistency in the verdict is undoubtedly due to the jury's erroneous belief that it could convict defendant of felony murder based upon the conspiracy count.
This is a case in which the reason for the inconsistent verdict is not clear. As such, I am barred from speculating as to whether the verdicts resulted from jury's lenity, compromise, or mistake, not adversely affecting the defendant.
In regard to the felony murder . . . this Court is constrained to accept the verdict of guilty handed down in this case. On appeal, defendant raises the following issues:
I. The finding of not guilty on the robbery and burglary charges, combined with critical omissions from the jury charge on defendant's responsibility for these crimes, renders defendant's felony murder conviction invalid as a matter of law, warranting vacation here (partially raised below).
II. The trial court should have suppressed defendant's pretrial statements to police because his Miranda and Fifth Amendment rights were violated.
III. Even if defendant's statements were properly admitted, permitting the jury to have the taped, oral statements with a tape player in the jury room during deliberations, without cautionary instructions, violated State v. Burr.
IV. The prosecutor's references to defendant's alleged prior bad acts, alias, unemployment, and other improper comments before the jury unfairly prejudiced defendant in the jury's eyes and denied him a fair trial.
V. Defendant's acquittal of the robbery and burglary charges erased the unlawful purpose charged by the court in the possession of a weapon for an unlawful purpose charge under Count 7, warranting vacation of defendant's weapons conviction (plain error).
VI. Defendant's sentence is excessive and improper.
We reverse, finding that the challenged remarks by the prosecutor, cumulatively considered, deprived defendant of a fair trial. With specific reference to defendant's felony murder conviction, we also find plain error in the trial court's failure to instruct the jury on accomplice liability, which, in our view, had the clear potential to lead the jury to believe defendant could have been found guilty of that charge based on some conduct or state of mind lesser than that required for a conviction on the predicate robbery and/or burglary charges.
Defendant contends the prosecutor made inappropriate remarks during opening and closing statements and elicited improper testimony that cumulatively denied him a fair trial. He points to four separate incidents: 1) using defendant's street name "Corrupt"; 2) eliciting testimony from Stewart that defendant was in jail; 3) referring to the fact that defendant was "broke" and "on welfare" as a motive for committing the offenses; and 4) eliciting testimony from both Stewart and Davis that they were "scared" of defendant to explain inconsistencies in their testimony and prior out-of-court statements without the court providing a limiting jury instruction. We agree that cumulatively considered, the challenged references had the clear capacity to prejudice defendant's right to a fair trial.
Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). Accordingly, the prosecutor's statements must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958).
Considerable leeway is afforded to prosecutors in giving their closing arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (finding that the prosecutors multiple assertions of the witness's veracity was impermissible, where credibility of the witness's testimony was the central issue in the case). "Although generally limited to commenting on the evidence and to drawing any reasonable inferences supported by the proofs, a prosecutor may nonetheless make 'a vigorous and forceful presentation of the State's case.'" State v. Dixon, 125 N.J. 223, 259 (1991) (quoting Bucanis, supra, 26 N.J. at 56); see also State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).
In general, if a defendant does not object to prosecutorial remarks, they will not be regarded as prejudicial. State v. Josephs, 174 N.J. 44, 124-25 (2002); Timmendequas, supra, 161 N.J. at 576. "[A] failure to make a timely objection indicates defense counsel's belief that the prosecutor's remarks were not prejudicial at the time they were made." Josephs, supra, 174 N.J. at 125. However, the lack of a contemporaneous objection does not obviate a finding of reversible error. State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994). Reversal of a conviction is warranted if the conduct is so egregious that defendant was denied his right to a fair trial. Ramseur, supra, 106 N.J. at 322-23; see State v. Papasavvas, 163 N.J. 565, 626 (2000) (explaining that "[b]ecause defense counsel did not object to any of the prosecutor's . . . remarks . . . now claimed to constitute prosecutorial misconduct, defendant must demonstrate plain error to prevail" (internal citation and quotation omitted)).
"[P]articular remarks must be appraised in the setting of the whole trial." State v. Bruce, 72 N.J. Super. 247, 252 (App. Div. 1962). "[E]ven 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 on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008); see also State v. Koskovich, 168 N.J. 448, 540 (2001) (holding that cumulative error warranted reversal of death sentence regardless that no individual error warranted reversal). To warrant reversal of a defendant's conviction, a court must find that "the errors had a disproportionately harmful effect in defendant's trial" sufficient to prejudice "the fairness of defendant's trial and, therefore, cast doubt on the propriety of the jury verdict that was the product of that trial." Jenewicz, supra, 193 N.J. at 473.
During his opening statement, the prosecutor stated "Nathaniel Smith also known as Corrupt", to which defense counsel objected. At sidebar, the judge explained why he overruled defendant's objection:
I believe, and I'm not sure I - on the record, but if the victims are going to identify him as Corrupt as a nickname, then, you know, the opening statement ties up what they said to the witness, I would - which I clearly did, but at this juncture since I'm told that that's what the victims knew the person by I'll allow it.
Additionally, Stewart testified that she knew defendant as "Corrupt," and during summation, the prosecutor stated: "[co-defendant] got involved with a corrupt individual, he lives up to his name, by the way."
"The use of defendant's street nickname during trial cannot serve as a per se predicate for reversal." State v. Paduani, 307 N.J. Super. 134, 146 (App. Div.), certif. denied, 153 N.J. 216 (1998). "[T]he admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.), certif. denied, 111 N.J. 609 (1988). In Paduani, supra, we found the use of the defendant's street nickname, "Marijuana[,]" during his trial for aggravated assault, was properly admitted and potential prejudice was prevented by the court's limiting instruction to the jury regarding its use. 307 N.J. Super. at 146-47. Relying on our decision in Salaam, in Paduani we noted that the "testimony was clearly relevant because each defendant was identified to the police by use of a nickname" and "defendant ha[d] pointed to no tangible form of prejudice attributable to the use of his nickname during the trial and [the court's] independent review of the record reveals none." Id. at 147.
Here, although ostensibly admitted to show Stewart's familiarity with defendant, there was no real or genuine issue at trial related to either defendant's identity or his relationship with Stewart. Thus, the repeated reference to defendant's nickname "Corrupt" was entirely gratuitous and prejudicial since the moniker was highly suggestive of prior criminal or bad conduct on the part of defendant. See N.J.R.E. 404(b). Indeed, the prosecutor reinforced this impression in his closing argument when he remarked that Davis "got involved with a corrupt individual [who] lives up to his name." This ...